
  
 

 

NUMBER 13-08-00003-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



MIRANDA MONTALVO,	Appellant,

v.

COUNTY OF REFUGIO, TEXAS, 	Appellee.
  


On appeal from the 267th District Court

of Refugio County, Texas.

 


MEMORANDUM OPINION


Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

	Appellant, Miranda Montalvo, appeals from a summary judgment granted in favor
of appellee, the County of Refugio, Texas ("the County").  By four issues, Montalvo 
contends the trial court erred in:  (1) granting summary judgment (issues one and two); (2)
overruling her objections to the affidavit of Earl Petropoulos, Sheriff of the County (issue
three); and (3) sustaining the County's objections to her affidavit (issue four).  We affirm.

I.  Background  

	Montalvo was formerly employed as jail administrator for the County Jail.  When
Petropoulos was elected sheriff and took office in January 2005, he demoted her to
correctional officer and replaced her with Officer Ted Arcand.  In July 2005, Montalvo filed
a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"),
alleging race and gender discrimination.  After  Montalvo was terminated on December 13,
2005, she amended her charge of discrimination to include a retaliation claim.  She sued
the County in May 2006, alleging  claims of sexual harassment, gender discrimination, and
retaliation. (1)
	The County filed a traditional and no-evidence motion for summary judgment. (2)  In
its no-evidence motion, the County argued that:  (1) with respect to her sexual harassment
claim, Montalvo had no evidence that she was subjected to unwelcome sexual
harassment; and (2) with respect to her retaliation claim, Montalvo had no evidence of a
causal connection between her filing a charge of discrimination and her termination.  The
County filed a traditional motion for summary judgment with regard to Montalvo's claims
of gender discrimination.  The County attached as summary judgment evidence:  (1) an
affidavit by Petropoulos with exhibits (3); and (2) Montalvo's deposition.  Montalvo filed a
response and attached:  (1) her own affidavit; and (2) the depositions of several current or
former County Sheriff's Department employees, including Arcand, Sergeant Johnny Repka,
Lieutenant Raymond Silvas, and Sergeant Rebecca Tanguma.
	The trial court held a hearing on the County's motion on September 24, 2007. 
Following the hearing, the trial court issued an order which:  (1) granted summary judgment
on Montalvo's sexual harassment and gender discrimination claims; (2) sustained the
County's objections to Montalvo's affidavit on the bases that it contained hearsay and
conclusory statements; (3) overruled Montalvo's objections to Sheriff Petropoulos's
affidavit; and (4) granted summary judgment as to Montalvo's remaining claim of
retaliation.  
	At the hearing, Montalvo's counsel advised the trial court that Montalvo "agreed" that
summary judgment was proper as to her claims for sexual harassment and gender
discrimination.  The following statement was made by Montalvo's counsel: 
Your Honor, we agreed in terms of the initial discrimination claim, the
gender-based discrimination, and with regard to the sexual harassment
claim, that summary judgment should be granted as to those claims, as we
told them that in mediation.  I just didn't make it clear in our response.  So
that the sole argument that we have here now is the harassment and
retaliation related to the filing of the claim, which would include the wrongful
discharge, and that would simplify everything.
The trial court then granted summary judgment as to Montalvo's gender discrimination and
sexual harassment claims, and stated it would hear the County's argument regarding
Montalvo's retaliation claim.  
	We therefore conclude that Montalvo waived any challenge to the order granting
summary judgment as to her sexual harassment and gender discrimination claims. (4) 
Accordingly, we review only whether the trial court erred in sustaining the County's
objections to Montalvo's affidavit and in granting the County's no-evidence motion for
summary judgment as to her retaliation claim. 
II.  Standards of Review and Applicable Law  

A.  Summary Judgment 
 Whether a motion for summary judgment was brought on no-evidence or traditional
grounds determines our standard of review. (5) A no-evidence summary judgment is
equivalent to a pre-trial directed verdict, so we apply the same legal sufficiency standard
of review. (6)  We review a no-evidence summary judgment for evidence that would enable
reasonable and fair-minded jurors to differ in their conclusions. (7)  We "examine the entire
record in the light most favorable to the non[-]movant, indulging every reasonable inference
and resolving any doubts against the motion." (8) 
	A no-evidence motion for summary judgment must be granted if:  (1) the moving
party asserts that there is no evidence of one or more specified elements of a claim or
defense on which the adverse party would have the burden of proof at trial; and (2) the
respondent produces no summary judgment evidence raising a genuine issue of material
fact on those elements. (9)  The burden of producing evidence is entirely on the non-movant;
the movant has no burden to attach any evidence to the motion. (10)  We may not consider
any evidence presented by the movant unless it creates a fact question. (11) 
B.  Retaliation
	Section 21.055 of the labor code establishes that an employer commits an unlawful
employment practice if the employer retaliates or discriminates against a person who files
a charge of discrimination. (12)  "The elements of a retaliation claim are (1) the employee
engaged in a protected activity, (2) the employer took action against the employee, and (3)
a causal connection between the employee's protected activity and the adverse
employment decision." (13)  This Court has recognized the Fifth Circuit's articulation of the
standard for retaliation claims: 
The causal link required by the third prong does not rise to the level of a "but
for" standard at the prima facie stage.  "Close timing between an employee's
protected activity and an adverse action against [her] may provide the
'connection' required to make out a prima facie case of retaliation." Swanson
v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997); see, e.g.,
Richard v. Cingular Wireless LLC, 233 F. App'x 334, 338 (5th Cir. 2007)
(concluding that two and one half months is a short enough time period to
support an inference of a causal link); Raggs v. Miss. Power & Light Co., 278
F.3d 463, 471-72 (5th Cir. 2002) (holding that a five-month lapse, by itself,
does not support an inference of a causal link).

Assuming the plaintiff establishes a prima facie case, then the burden shifts
to the employer to articulate a legitimate, nondiscriminatory reason for its
actions.  If the employer articulates a legitimate nondiscriminatory reason,
then "any presumption of discrimination raised by the plaintiff's prima facie
case vanishes."

In the final stage of the McDonnell framework,[ (14)] the plaintiff bears the
ultimate burden of demonstrating a genuine issue of material fact as to
whether the employer's proffered reason is a pretext for a retaliatory
purpose. The plaintiff must show that "the adverse employment action taken
against the plaintiff would not have occurred 'but for' her protected conduct."
This court has expressly rejected the notion that temporal proximity standing
alone is sufficient to establish but-for causation.[ (15)]

III.  Analysis 


A.  Objections to Montalvo's Affidavit 
	In her fourth issue, Montalvo contends the trial court erred in sustaining the County's
objections to her affidavit.  The County filed written objections to Montalvo's affidavit,
specifically objecting to certain statements as hearsay and to others as vague and
conclusory.  The County objected to the following statements on the basis of hearsay:  (1)
"After [Sheriff] Petropolous was elected, I had learned that he had stated that he did not
want a female running his jail"; (2) "After being demoted, I was told by other individuals the
Sheriff had stated he did not want a female running his jail"; and (3) "Arcand had written
me up and suspended me without proper reason, as he later admitted."  As to the last
statement, the County notes that insofar as the statement suggests that Arcand "admitted"
something to Montalvo, it conflicts with Montalvo's earlier statement that Arcand had
stopped talking to her. However, insofar as the statement suggests that Arcand "admitted"
something to a third party, any such "admission" is hearsay.   
	The County also objected to the following statements as vague and/or conclusory: 
(1) "After I filed my complaint, everyone, including the Sheriff and Arcand[,] stopped talking
to me.  The Sheriff and Arcand changed their attitudes towards me and displayed a
negative attitude"; and (2) "I believe that I suffered retaliation based on my filing my EEOC
charge and complaint and was eventually terminated based on my charge and
complaint." (16) 
	With regard to the County's hearsay objections, Montalvo asserts in her brief that
the challenged statements are "admissible as statements against interest and admissions 
by a party opponent, which are exceptions to the hearsay rule."  
	At the summary judgment hearing, after hearing arguments of counsel, the trial court
announced:  "I'm going to disregard the statements in the first paragraph, [and] last
paragraph that are based on hearsay and that are conclusory, and I will consider the rest
of what the affidavit has to say."  Thus, the trial court did not consider the first and second
statements that the County objected to on the basis of hearsay, but did consider the third
statement.  As to the statements the County objected to on the basis that they were vague
and/or conclusory, the trial court considered the first statement, but did not consider the
second.  We therefore address whether the trial court erred in refusing to consider the first
and second statements challenged on the basis of hearsay and the second statement
challenged as vague and/or conclusory. 
	We first address the trial court's refusal to consider the statements challenged on
the basis of hearsay.  The relevant portion of the first hearsay-challenged statement is, "I
had learned that [Sheriff Petropolous] had stated . . . ."  The relevant portion of the second
hearsay-challenged statement is "I was told by other individuals the Sheriff had stated . .
. ."  The County argues that when Montalvo's affidavit "refers to a third party who
supposedly heard the Sheriff say something[,] it becomes hearsay within hearsay and the
statement against interest and admission exceptions do not apply to the second hearsay." 
	Hearsay within hearsay is admissible "if each part of the combined statements
conforms with an exception to the hearsay rule . . . ." (17)  Here, with respect to the first
statement, Montalvo does not say that Sheriff Petropolous told her directly what he said. 
Rather, she says only that she "learned" from unidentified others what the Sheriff
purportedly said.  Thus, without knowing the identity of the declarant, we cannot say that 
the first part of the statement qualifies as any exception to the hearsay rule. (18)  Because not
all levels of hearsay contained within the statement satisfy an exception to the hearsay
rule, we conclude that the trial court did not abuse its discretion in sustaining the County's
hearsay objection to this statement.
	Similarly, the first level of hearsay in Montalvo's second statement identifies the
declarants only as "other individuals" who told Montalvo what the Sheriff said.  Montalvo
has offered no hearsay exception applicable to these "other individuals."  Thus, we
conclude the trial court did not abuse its discretion in sustaining the County's hearsay
objection to the second statement.  
	In her brief, Montalvo does not address the trial court's decision to disregard as
conclusory her statement, "I believe that I suffered retaliation based on my filing my EEOC
charge and complaint and was eventually terminated based on my charge and complaint." 
Accordingly, any issue regarding the trial court's decision to disregard this statement is
inadequately briefed, and Montalvo has waived any error. (19)  Regardless, we agree with the
trial court that the statement is conclusory.  A plaintiff's subjective belief as to the reason
for her termination is not competent summary judgment evidence. (20)  We conclude the trial
court did not abuse its discretion in sustaining the County's objections to Montalvo's
affidavit.  We overrule Montalvo's fourth issue.    
B.  No Evidence of Causation in Retaliation Claim 
	By her first and second issues, Montalvo contends the trial court erred in granting
summary judgment as to her claim of retaliation.  As noted, the County asserted that
Montalvo had no evidence of a causal connection between her filing a charge of
discrimination and her termination.  We agree.
	In her response to the County's motion, Montalvo devoted a single sentence to the
causation element:  "Plaintiff has met her burden in establishing a causal connection." 
Montalvo does not explain on appeal how this assertion relates to any of her claims, nor
does she provide any argument or cite any evidence or authority. (21) 
	Nonetheless, we have reviewed the evidence attached to Montalvo's response:  her
own affidavit and the depositions of  Officers Arcand, Repka, Silvas, and Tanguma.  In her
affidavit, Montalvo notes that "everyone" (presumably, in the Sheriff's Department) was
informed that she had filed a charge of discrimination.  As noted above, the trial court
rejected the County's objection that the following statement was "vague, general, and
conclusory":  "After I filed my complaint, everyone, including the Sheriff and Arcand[,]
stopped talking to me.  The Sheriff and Arcand changed their attitudes towards me and
displayed a negative attitude."  Without addressing whether the trial court erred in
overruling the County's objection, and without addressing whether the alleged "negative
attitude" displayed toward Montalvo constituted an adverse employment action, we hold
that neither this statement nor any other statement in Montalvo's affidavit (22) established a
causal link between filing her charge of discrimination and her termination. (23) 
	Officer Arcand's deposition establishes that he knew of Montalvo filing a charge of
discrimination because the Sheriff told him about it.  Arcand also stated in his deposition
that in December 2005, he recommended to the Sheriff that Montalvo be terminated
because of complaints he had received about her from other officers.  Officer Tanguma
and other officers reported that Montalvo had said she "was not going to do what was
asked of her" and "wasn't going to listen" to her fellow officers.
	Officer Repka's deposition states that he did not know Montalvo had filed a charge
of discrimination.  Officer Silvas's deposition states that he was unaware of Montalvo's 
charge of discrimination in July 2005, but that he "eventually" heard about it.  Silvas also
discussed his written statement, in which he noted that Montalvo's conduct was causing
a security risk due to her reported statements that she would not cooperate with or obey
her fellow officers.  Officer Tanguma's deposition states that she knew of Montalvo filing
a charge of discrimination.  She also discussed her written statement, in which she
described Montalvo telling her that she (Montalvo) would never help Officer Tanguma if
asked to do so, and also would never help Officers Arcand or Repka if asked to do so. 
	We conclude that the officers' deposition testimony constituted no evidence of any
causal link between Montalvo's filing of her charge of discrimination and her termination. 
Moreover, we conclude that even if Montalvo had established prima facie causation, her 
own evidence established that the County offered legitimate non-retaliatory reasons for its
decision to terminate her. (24)  Montalvo argues that the County's "investigation" of her, in
which Officer Arcand questioned other officers about her, is a "pretense" because some
of the officers' written statements were submitted the day after she was terminated.  We
disagree.  The fact that the officers' written statements documenting the reported
information were dated the day after Montalvo's termination does not establish that the
County's legitimate, non-retaliatory reason for terminating Montalvo was pretextual.  We
hold that the trial court did not err in granting the County's motion for summary judgment
on no-evidence grounds with regard to Montalvo's retaliation claim.  We overrule
Montalvo's first and second issues.
IV.  Conclusion

	We need not address Montalvo's remaining issue, as it is not dispositive to this
appeal. (25)  We affirm the trial court's order granting summary judgment in the County's
favor.

								_______________________________
								LINDA R. YAÑEZ,
								Justice
 
Delivered and filed the
29th day of April, 2010.
1.  See Tex. Labor Code Ann. §§ 21.051, 21.055 (Vernon 2006).  
2.  See Tex. R. Civ. P. 166a(c), (i).
3.  The exhibits include:  (1) Arcand's report as jail administrator; (2) Arcand's report regarding
Montalvo; (3) Officer Rebecca Tanguma's written statement regarding Montalvo; and (4) Sergeant Johnny
Repka's written statement regarding Montalvo. 
4.  See Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 101 (Tex. App.-Eastland 2006, pet. denied)
(noting that a party may not invite error by asking something of a court and then complain that the court erred
in granting the request).
5.  See Tex. R. Civ. P. 166a(c), (i); see also Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex.
App.-Corpus Christi 2003, no pet.). 
6.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006); Ortega, 97 S.W.3d at 772.
7.  Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005)). 
8.  Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller, 168 S.W.3d
at 823).
9.  See Tex. R. Civ. P. 166a(i); Sudan, 199 S.W.3d at 292.  
10.  See Tex. R. Civ. P. 166a(i).
11.  Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).
12.  See Tex. Labor Code Ann. § 21.055 (Vernon 2006).
13.  Cox v. Waste Mgmt.of Tex., Inc., 300 S.W.3d 424, 437 (Tex. App.-Fort Worth 2009, pet. denied)
(quoting Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 730 (Tex. App.-Fort Worth 2006, no pet.); see
also Villarreal v. Del Mar College, No. 13-07-00119-CV, 2009 Tex. App. LEXIS 2052, at *15 (Tex.
App.-Corpus Christi 2009, pet. denied) (mem. op.) (citing McCullough v. Houston County, Tex., 297 F. App'x
282, 288-89 (5th Circ. 2008)).   
14.  See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
15.  Villarreal, 2009 Tex. App. LEXIS 2052, at *16-17 (quoting McCullough, 297 F. App'x at 288-89
(some internal citations omitted)). 
16.  We note that the County also objected to Montalvo's purported statement that "she was told matters
regarding her termination."  We assume the County is referring to the following statements in Montalvo's
affidavit:

Eventually, I was told I was terminated based on an investigation that was not even
completed until the day after I was terminated.  I was told the investigation was the basis for
my termination when some of the people who supposedly supplied statements for the
termination did not make the statements until the day after I was terminated.  
17.  See Tex. R. Evid. 805; Knox v. Taylor, 992 S.W.2d 40, 64 (Tex. App.-Houston [14th Dist.] 1999,
no pet.).   
18.  See  Tex. R. Evid. 805.  
19.  See Tex. R. App. P. 38.1(i).  
20.  See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000).  
21.  See Tex. R. App. P. 38.1(i). 
22.  In separate paragraphs, without explaining when any of the alleged events occurred, Montalvo also
complained that she was "written up," "suspended without pay,"  was not offered a position as corporal, and
finally, was terminated based on an investigation which she contends was pretextual.  
23.  See Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that a
five-month lapse, by itself, between employee's protected activity and adverse employment action does not
support an inference of a causal link).
24.  See Villarreal, 2009 Tex. App. LEXIS 2052, at *16-17.
25.  See Tex. R. App. P. 47.1. 
