Motion for Rehearing Granted; Affirmed; Memorandum Opinion filed
January 16, 2014 Withdrawn; and Substitute Memorandum Opinion filed
July 24, 2014.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-12-00980-CV

                  APRIL DUPREE ADESHILE, Appellant
                                      V.

    METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,
                     TEXAS, Appellee

                   On Appeal from the 61st District Court
                           Harris County, Texas
                     Trial Court Cause No. 2010-66501

    SUBSTITUTE MEMORANDUM OPINION


      We grant Adeshile’s motion for rehearing, withdraw our memorandum
opinion dated January 16, 2014, and issue the following substitute memorandum
opinion. Appellant April Dupree Adeshile sued the Metropolitan Transit Authority
of Harris County, Texas (METRO) for retaliation under the Texas Commission on
Human Rights Act (TCHRA). 1 On appeal, Adeshile contends that the trial court
erred when it granted a directed verdict in favor of METRO. We conclude that
Adeshile did not present sufficient probative evidence to raise a fact issue on her
prima facie case of retaliation and affirm. 2

                     I.     FACTS AND PROCEDURAL BACKGROUND

       While employed as a METRO bus driver in 2006, Adeshile filed a federal
lawsuit against METRO, alleging sexual discrimination. She implicated several
METRO employees, including Cordia Jackson, in that lawsuit. Ultimately, the
federal lawsuit was dismissed.

       In August 2009, Adeshile was still a METRO bus driver, and Jackson was
the assistant superintendent of the METRO garage where Adeshile worked. On
January 15, 2010, while Jackson was on medical leave, Adeshile was given a
verbal counseling about METRO’s Attendance Control Policy. The purpose of the
counseling was to inform Adeshile that she had violated METRO’s attendance
policy in September 2009 by calling in sick too often within a ninety-day period.
Believing that she had received the verbal counseling in error, Adeshile refused to
sign the verbal counseling form. Adeshile then initiated this retaliation lawsuit.

       Adeshile alleged in her petition that METRO retaliated against her by
issuing unwarranted write-ups and disciplinary action and by denying her a
promotion to Street Services Supervisor. She claimed that the disciplinary action
and the denial of the promotion resulted from her 2006 discrimination lawsuit.

       1
           See Tex. Lab. Code Ann. ch. 21 (West 2006 & Supp. 2013).
       2
          In her motion for rehearing, Adeshile claims, without presenting any supporting
evidence, that the August 8, 2012 portion of the reporter’s record was deleted or destroyed.
Contrary to her assertion, the third volume of the reporter’s record in our possession is titled
“Jury Trial – Motion for Directed Verdict” and is dated August 8, 2012. Absent evidence to the
contrary, we conclude that we have a complete reporter’s record.

                                               2
      Adeshile’s case went to trial in 2012. After she had presented her case,
METRO moved for a directed verdict, which the trial court granted. Adeshile
timely appealed.

                      II.    DIRECTED VERDICT STANDARDS

      We apply a legal sufficiency standard when reviewing a directed verdict.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). A directed
verdict is proper if no probative evidence raises a fact issue on the material
questions in the lawsuit. Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d
337, 343 (Tex. App.—Houston [14th Dist.] 2003, no pet.). A directed verdict in
favor of the defendant is proper (1) if the plaintiff does not present evidence raising
a fact issue essential to her right of recovery or (2) if the plaintiff admits or the
evidence conclusively establishes a defense to her cause of action. Id. at 343.
When reviewing a directed verdict, we must consider all the evidence in a light
most favorable to the nonmovant, crediting evidence a reasonable jury could credit
and disregarding contrary evidence unless a reasonable jury could not. Merriman,
407 S.W.3d at 248. The trial court must instruct the verdict if there is no evidence
of probative force on an ultimate fact element. Cherqui, 116 S.W.3d at 343.

                                 III.   DISCUSSION

      To establish a prima facie case of retaliation, Adeshile had to prove that (1)
she engaged in a protected activity, (2) an adverse employment action occurred,
and (3) a causal connection existed between the participation in the protected
activity and the adverse employment action. Navy v. Coll. of the Mainland, 407
S.W.3d 893, 900 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see Tex. Lab.
Code Ann. § 21.055 (West 2006). The first element is not at issue in this case;
Adeshile’s 2006 discrimination lawsuit was a protected activity. See Tex. Labor
Code Ann. § 21.055 (West 2006). METRO argues that Adeshile failed to raise a
                                          3
fact issue on the second and third elements of retaliation. We agree.

                             A. Adverse Employment Action

       Adeshile presented no probative evidence of an adverse employment action.
The TCHRA’s anti-retaliation provision protects the individual from action that a
reasonable employee would have found materially adverse. Navy, 407 S.W.3d at
901 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
Materially adverse employer actions are those that are likely to deter victims of
retaliation from complaining to the Equal Employment Opportunity Commission,
the courts, and their employers. Navy, 407 S.W.3d at 901. Normally, petty slights,
minor annoyances, and simple lack of good manners do not have the requisite
deterrent effect. Id.

       A court can consider the following factors in deciding whether an
employer’s actions were materially adverse:

       (1)    the effect the act had on the employee’s prestige;

       (2)    the effect the act had on the employee’s opportunity for advancement;

       (3)    the effect the act had on the employee’s pay;

       (4)    the effect the act had on the employee’s core job duties; and

       (5)    the effect the act had on the employee’s ability to obtain outside
              employment.
See Montgomery Cnty. v. Park, 246 S.W.3d 610, 615–16 (Tex. 2007) (applying
Texas Whistleblower Act). The presence or absence of any of these factors is not
dispositive because the effect of a challenged action must be considered as a whole
in light of all the circumstances. Id.

       Adeshile contends that her receipt of a Disciplinary Action Report (DAR),
METRO’s decision not to promote her to Street Services Supervisor, and her

                                          4
receipt of verbal counseling about METRO’s Attendance Control Policy all
constitute material adverse employment actions that would support a retaliation
claim. The issue here is whether any of the alleged acts constitute an adverse
employment decision that would deter a reasonable employee from making or
supporting a charge of discrimination. Navy, 407 S.W.3d at 901.

      First, we need not determine whether a DAR is a material adverse
employment action because the trial record contains no evidence that Adeshile
received a DAR. According to Article 4 of the METRO Employee Performance
Code and Work Rules, a DAR is “a notation in an employee’s file that discipline
has been taken as a result of a work rule violation.” Adeshile testified that the
minimum penalty for receiving a DAR is a suspension without pay and that the
maximum penalty is termination. Adeshile testified that she was never suspended
or terminated. At the time of trial, Adeshile was still employed by METRO as a
bus driver. This suggests that Adeshile did not receive a DAR. Furthermore,
Adeshile presented no evidence at trial that a DAR was ever placed in her file.
Therefore, we cannot conclude that Adeshile received a DAR.

      Second, we need not determine whether METRO’s decision not to promote
Adeshile to Street Services Supervisor was a material adverse employment action
because the trial record contains no evidence that Adeshile was denied a
promotion. Adeshile alleged in her petition that she was denied a promotion to
Street Services Supervisor as a result of the 2006 discrimination lawsuit. However,
she presented no evidence at trial to support her allegation. Generally, the
testimony elicited by her counsel focused on whether Adeshile had received a
DAR and whether the verbal counseling amounted to “discipline” under METRO’s
rules and regulations, not whether METRO denied her a promotion to Street
Services Supervisor. Adeshile did submit into evidence a June 2008 cover letter,

                                        5
resume, and application for the position of Street Services Supervisor, but she did
not present any evidence connecting the documents to an actual 2008 job opening
or to an employment decision made by METRO. The existence of the application
documents, without more, is not sufficient to prove that METRO denied her a
promotion.

      Finally, we conclude that Adeshile did not present evidence raising a fact
issue on whether the verbal counseling was a material adverse employment action.
On January 15, 2010, METRO gave Adeshile a verbal counseling for violating its
Attendance Control Policy. The verbal counseling in this case is evidenced by a
form titled “Attendance Control Policy – Counseling.”3



      3
          The verbal counseling form states:
               The Attendance Control Policy has been explained in detail to the
               employee.
               Once a poor attendance record has been established, and you have
               received a counsel, there must be a ninety (90) day period between the
               last day of the first absence and the first day of the next illness to avoid
               more severe disciplinary action. Each incident of illness may be used
               for disciplinary action for twelve (12) months.
               Once counseled, which is the first step, the employee will be subject to
               the following disciplinary actions.
               1. Counseling
               2. Reprimand
               3. Three (3) days suspension
               4. Five (5) days suspension
               5. Employee will be subject to discharge.
               After counseling or disciplinary action has been given, if the employee
               does not get on the sick list for ninety (90) days, counting from the last
               day of his/her previous incident, he/she will be counseled. However,
               the prior disciplinary action ie… [sic] reprimand or suspension, will
               not clear for twelve (l2) months.



                                                  6
      Adeshile was not suspended or terminated as a result of the verbal
counseling. Adeshile did not present any evidence, other than her own subjective
belief, that a verbal counseling would adversely affect her prospects or prestige in
the agency. See Gold v. Exxon Corp., 960 S.W.2d 378, 385 (Tex. App.—Houston
[14th Dist.] 1998, no pet.) (plaintiff’s subjective beliefs, without additional proof,
are insufficient to survive a summary judgment). Adeshile did not present any
evidence that she was reassigned or that her job duties were otherwise altered as a
result of the verbal counseling. See City of El Paso v. Parsons, 353 S.W.3d 215,
228 (Tex. App.—El Paso 2011, no pet.) (applying Texas Whistleblower Act;
reassignment was adverse employment action); Gray v. City of Galveston, No. 14-
12-00183-CV, 2013 WL 2247386, at *7 (Tex. App.—Houston [14th Dist.] May
21, 2013, no pet.) (mem. op.) (same). Adeshile did not present any evidence that
the verbal counseling actually affected her opportunities for advancement.
Adeshile did not present any evidence that the verbal counseling affected her pay,
her core job duties, or her ability to obtain outside employment.

      The trial record further demonstrates that the verbal counseling did not deter
Adeshile from making or supporting charges of discrimination. After receiving the
verbal counseling, Adeshile sent multiple letters to her superintendent and to
METRO’s Associate Diversity EEO Compliance Officer complaining about
incidents of sexual harassment, discrimination, and retaliation, all of which were
unrelated to this case. Adeshile also filed a charge of discrimination with the
EEOC on August 17, 2011, in which she colorfully described incidents of alleged
sexual harassment dating back to 2002.

      Viewing the entire record objectively and in the light most favorable to
Adeshile, we conclude that Adeshile presented no probative evidence that the
verbal counseling constituted a material adverse employment action. Cf. Niu v.

                                          7
Revcor Molded Prods. Co., 206 S.W.3d 723, 731–32 (Tex. App.—Fort Worth
2006, no pet.) (holding that no adverse employment action occurred when
employer reprimanded employee for combating his associates, making
inappropriate comments to subordinates, and conducting himself unprofessionally).

                                B. Causal Connection

      Even if we were to assume that the verbal counseling was an adverse
employment action, Adeshile did not present any evidence that a causal connection
existed between her participation in the 2006 discrimination lawsuit and the verbal
counseling. A TCHRA retaliation plaintiff must establish a “but for” causal nexus
between the protected activity and the employer’s prohibited conduct. Crutcher v.
Dall. Indep. Sch. Dist., 410 S.W.3d 487, 494 (Tex. App.—Dallas 2013, no pet.).
The plaintiff must prove that without the protected activity, the employer’s
prohibited conduct would not have occurred when it did. Id. Circumstantial
evidence showing the requisite causal link may include:

      (1)    the employer’s failure to follow its usual policy and procedures
             in carrying out the challenged employment actions;
      (2)    discriminatory treatment in comparison to similarly situated
             employees;
      (3)    knowledge of the discrimination charge or suit by those making
             the adverse employment decision;
      (4)    evidence that the stated reason for the adverse employment
             decision was false; and
      (5)    the temporal proximity between the employee’s conduct and
             [the adverse employment action].
Id. (citing Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 519 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied)).

      The evidence in this case does not raise a fact issue on the causal connection
between the alleged adverse employment action and the protected activity.

                                           8
Adeshile presented no evidence that METRO failed to follow its usual policy and
procedures in carrying out the verbal counseling. Adeshile presented no evidence
that METRO treated similarly situated employees differently. Adeshile presented
no evidence that James Wright, the person who gave Adeshile the verbal
counseling, knew of Adeshile’s 2006 discrimination lawsuit. Adeshile presented no
evidence, other than her own subjective belief, that Wright gave Adeshile the
counseling at Jackson’s request. The four-year span between the 2006
discrimination lawsuit and the 2010 verbal counseling further suggests that the two
events were not causally related. Cf. Green, 199 S.W.3d at 522–23 (holding that,
without more, four months between employee’s filing of a workers’ compensation
claim and employee’s termination was not sufficient to establish causal link in
support of employee’s workers’ compensation retaliation claim).

      Adeshile did present some evidence, however, that the verbal counseling
may have been given by mistake. The verbal counseling form stated that Adeshile
was receiving counseling for an infraction that occurred on September 14, 2009. At
METRO, an employee’s sick days are recorded on Employee Data Calendars.
Adeshile presented two versions of her 2009 Employee Data Calendar. The first
version showed that she had been sick on August 19, 20, and 21. The first version
also showed that she was sick for a period of time starting on September 14. The
first version indicates that Adeshile was scheduled for verbal counseling because
fewer than ninety days had passed between the August 21 sick day and the
September 14 sick day.

      The second version of the 2009 Employee Data Calendar showed that the
August 19, 20, and 21 sick days had been whited out. The change had been
initialed by a METRO superintendent. Adeshile testified that the changes were
made in March 2010 after she complained to her union representative.

                                        9
      According to Adeshile, the discrepancy between the first and second
versions of the 2009 Employee Data Calendar proves that someone at METRO
falsified the records to establish a basis for eventually terminating her employment.
Specifically, Adeshile believes that Jackson, Adeshile’s supervisor and one of the
METRO employees implicated in the 2006 discrimination lawsuit, falsified the
calendar and initiated the verbal counseling in retaliation for the 2006
discrimination lawsuit.

      The evidence, however, refutes Adeshile’s beliefs. Jackson testified that she
was not responsible for managing the Employee Data Calendars in 2009:

      Q.     Did you know that Ms. Adeshile was on the sick list for August
             19th, 20, 21, 2009 at the time that – in August of 2009? Did you
             know she was on the sick list in August of 2009?
      A.     No, I did not.


      ...


      Q.     Who would have handled the issue of that attendance for
             August 19th, 20, and 21, 2009?
      A.     Robert Augustine [a METRO superintendent].
      Q.     As far as you know, sitting here today, did he handle that issue?
      A.     As far as I know.
      Q.     Did Mr. Augustine ever consult with you about the August 19
             through 21st, 2009 attendance issue with Ms. Adeshile?
      A.     No, he did not.
      Q.     Were you involved in assessing, either notation in a card or
             calendar, or in assessing verbal counseling regarding Ms.
             Adeshile?
      A.     No.
      Q.     I want to move on to September 14, 2009, the next time Ms.
             Adeshile was on the sick list. Were you responsible for
                                         10
              handling that attendance issue?
       A.     No.
       Q.     Who would have handled it?
       A.     Robert Augustine.
       Q.     Now, a similar question. Did he consult with you about the
              September 14, 2009?
       A.     No.
       Q.     Let’s look at August 19 through 21st, 2009. You see the S’s; is
              that your handwriting?[4]
       A.     No, it is not.
       Q.     And kind of a line, “VC.” Is that your handwriting?
       A.     No, it is not.
       Q.     Let’s look at September. And again you see the circling and all
              the S’s in September. Is that your handwriting?
       A.     No, it is not.
       Q.     Then you see the line on the way up. There’s an “R” crossed
              out, and “VC.” Is that your handwriting?
       A.     No, it is not.
Based on this uncontroverted testimony, we cannot say that Adeshile adequately
connected Jackson to any of the alleged adverse employment actions. Nor can we
say that the Employee Data Calendar discrepancy is probative evidence of a causal
relationship when Adeshile has not linked the discrepancy or the verbal counseling
to her 2006 discrimination lawsuit.

       Even viewing the causation evidence in the light most favorable to Adeshile,
Merriman, 407 S.W.3d at 248, and assuming that an adverse employment action
occurred, Adeshile has not presented sufficient evidence to raise a fact issue on the


       4
         METRO’s attorney is referencing the first version of the 2009 Employee Data Calendar
here. The “S’s” are METRO’s abbreviation for “sick day.” “VC” is METRO’s abbreviation for
“verbal counseling.”

                                             11
causal connection between her participation in a protected activity and the alleged
adverse employment action.

      We conclude that Adeshile did not present sufficient probative evidence to
establish a prima facie case of retaliation under the TCHRA. The trial court did not
err when it granted METRO’s motion for directed verdict. We overrule Adeshile’s
sole issue on appeal.

                                      CONCLUSION

      The trial court’s judgment is affirmed.


                                /s/             Marc W. Brown
                                                Justice

Panel consists of Justices Boyce, Christopher, and Brown.




                                          12
