                               MEMORANDUM OPINION
                                      No. 04-09-00233-CV

                                       Irene MARTINEZ,
                                            Appellant

                                                v.

 WILSON COUNTY, TEXAS; KARNES COUNTY, TEXAS; NEVA SCHMIDT IN HER
   OFFICIAL CAPACITY AS CHIEF, JUVENILE PROBATION OFFICER, AND
         KARNES/WILSON JUVENILE PROBATION DEPARTMENT,
                             Appellees

                   From the 218th Judicial District Court, Karnes County, Texas
                               Trial Court No. 07-07-00106-CVK
                            Honorable David Peeples, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: January 13, 2010

AFFIRMED

           This appeal stems from the entry of a no-evidence summary judgment in favor of

Appellees Wilson and Karnes Counties, Neva Schmidt in her official capacity as Chief Juvenile

Probation Officer, and Karnes/Wilson Juvenile Probation Department (collectively the

“Department”). Appellant Irene Martinez sued the Department alleging wrongful termination in

retaliation for complaining about a gender based hostile work environment. Martinez contends
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she was discharged in violation of the Texas Commission on Human Rights Act (the “TCHRA”).

See TEX. LAB. CODE ANN. § 21.055(1) (Vernon 2006). The trial court concluded there was no

evidence that Martinez engaged in a protected activity resulting in her termination and granted

the summary judgment. We affirm the judgment of the trial court.

                                    STATEMENT OF FACTS

       Martinez, a former secretary for the Department, was terminated for allegedly trying to

prevent a student from receiving medical treatment and conspiring with her supervisor, Suzanne

Deptuch. Prior to her discharge, Martinez sent a grievance letter dated May 24, 2006 to Neva

Schmidt, Chief Juvenile Probation Officer, complaining about the unprofessional behavior of

male drill instructor Greg Cleveland.    Martinez claimed that Cleveland yelled at Martinez

because she told him the cafeteria manager was waiting. He shouted, “I am busy, she can wait

another ten minutes!” In the grievance letter, Martinez stated “[Cleveland] then turned towards

me, and with a very angry look and a very loud voice, ‘I am working, and I don’t go and bother

you when you are working!’ I then told him to stop yelling at me, at which time he replied ‘get

out and you can go tell all of them, before I drill you too!’” Martinez stated she was highly

offended by Cleveland’s behavior because it took place in front of the students and was

disrespectful. On June 2, 2006, Martinez sent another letter to Schmidt and each member of the

Board of Directors of the Probation Department, entitled “Notice of Hostile Work Environment,”

requesting they take measures against Cleveland.

       On June 7, 2006, Martinez was terminated for conspiring with Deptuch regarding an

incident and corresponding injury to a student on May 11, 2006. Schmidt’s letter to Martinez

dated June 8, 2006, stated Martinez was being terminated for attempting to prevent a student

from receiving medical treatment, among other things. The student in question had burned his



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face while conducting a science experiment without permission or supervision. Martinez and

Deptuch went to the student’s aid, and after speaking with the student’s mother and applying

burn ointment from the first aid kit, agreed that the child’s injuries did not require further

medical treatment. Schmidt was not alerted to the incident until the next afternoon when she saw

the student’s injuries.

        Martinez claims that she was subjected to a hostile working environment on the basis of

her female gender because of the abusive behavior of Cleveland. Martinez believes that when

she complained about the hostile work environment, she was terminated in retaliation for raising

the complaint. The Department filed a motion for summary judgment on grounds that there was

no evidence that Martinez engaged in a protected activity. The trial court granted the motion,

and Martinez timely filed for appeal.

                                        STANDARD OF REVIEW

        When a party moves for a no-evidence summary judgment, the nonmovant must produce

some evidence raising a genuine issue of material fact. TEX. R. CIV. P. 166a(i); Romo v. Tex.

Dep’t of Transp., 48 S.W.3d 265, 269 (Tex. App.—San Antonio 2001, no pet.). A no-evidence

summary judgment 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. TEX. R.

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

                                  RETALIATORY DISCHARGE

        Martinez contends genuine fact issues existed precluding summary judgment as to her

claim of wrongful discharge in retaliation for opposing a discriminatory practice.           The

Department argues on appeal that Martinez failed to make the required prima facie showing that



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she was engaged in a protected activity that resulted in her termination. We agree that Martinez

failed to make the necessary showing.

A. Prima Facie Elements

       In an employment discrimination case, we employ the burden-shifting analysis affirmed

in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). See Graves v. Komet, 982

S.W.2d 551, 554 (Tex. App.—San Antonio 1998, no pet.) (citing Dep’t of Human Servs. v.

Hinds, 904 S.W.2d 629, 636 (Tex. 1995)). To establish a prima facie case of retaliation, a

plaintiff must show: (1) she engaged in a protected activity; (2) an adverse employment action

occurred; and (3) there was a causal connection between participation in a protected activity and

the adverse employment decision. Wal-Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 295 (Tex.

App.—Corpus Christi 2000, pet. denied) (citing Graves, 982 S.W.2d at 554). The burden then

shifts to the defendant to demonstrate a legitimate nondiscriminatory purpose for the adverse

employment action. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—

Houston [14th Dist.] 2007, pet. denied).

       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 any manner in an

investigation, proceeding, or hearing. See City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex.

2008) (citing TEX. LAB. CODE ANN. § 21.055(2) (Vernon 2006)). The discriminatory practices

made unlawful under the Act include “adverse employment decisions based on race, color,

disability, religion, sex, national origin, or age.” TEX. LAB. CODE ANN. § 21.051 (Vernon 2006).

“Because our state statute tracks its federal counterpart in title VII of chapter 42 of the United

States Code, we may consider analogous federal case law in the interpretation and application of

our Texas statute.” Romo, 48 S.W.3d at 269-70 (citing Graves, 982 S.W.2d at 554).



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B. Protected Activity

       In the present case, Martinez contends genuine fact issues exist precluding summary

judgment as to her claim that she engaged in a protected activity. An employee’s opposition to

discriminatory conduct may be protected even if no violation of law existed but the employee

reasonably believed that a violation had occurred. Byers v. Dallas Morning News, Inc., 209 F.3d

419, 428 (5th Cir. 2000). Engaging in a protected activity, however, requires a complaint of

some sort of discrimination that is covered by the TCHRA. Spinks v. Trugreen Landcare,

L.L.C., 322 F. Supp. 2d 784, 796 (S.D. Tex. 2004). “A vague charge of discrimination will not

invoke protection under the statute.” Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex.

App.—Houston [14th Dist.] 1998, no pet.). A complaint of unfair treatment and harassment

does not “put the employer on notice that the complaint was based on . . . sexual discrimination.”

Harris-Childs v. Medco Health Solutions, Inc., 169 F. App’x 913, 916 (5th Cir. 2006).

       In order for workplace comments to “provide sufficient evidence of discrimination, those

comments must be (1) related to plaintiff’s protected class, (2) proximate in time to the adverse

employment decision, (3) made by an individual with authority over the employment decision at

issue, and (4) related to the employment decision at issue.” Krystek v. Univ. of S. Miss., 164 F.3d

251, 256 (5th Cir. 1999); accord Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 729-30

(Tex. App.—Fort Worth 2006, no pet.). Stray remarks made in the work place by non-decision

makers are not evidence of the employer’s intent to discriminate. See Nichols v. Loral Vought

Sys. Corp., 81 F.3d 38, 41-42 (5th Cir. 1996); see also Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006) (stating that Title VII “does not set forth a general civility code for

the American workplace.” (citations omitted)). “[S]ubjective beliefs of discrimination alone are




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insufficient to establish a prima facie case.” Romo, 48 S.W.2d at 270 (citing Farrington v. Sysco

Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1993, writ denied)).

C. Martinez’s Summary Judgment Evidence

       Martinez argues that her letters of May 24, 2006 and June 2, 2006 are evidence that she

opposed the Department’s gender discrimination that created a hostile work environment. While

Martinez did complain of a hostile work environment, at no time, in her letters or otherwise, did

she suggest that Cleveland’s conduct was motivated by Martinez’s race, sex, age, disability, or

other characteristic protected by the TCHRA. Although Martinez may have found Cleveland’s

behavior rude or offensive, there is no indication that it implicated the TCHRA. See Romo, 48

S.W.2d at 270. Furthermore, Martinez produced no evidence that Cleveland was a decision

maker or that he was in any position to influence the individuals making the termination

decisions. See Nichols, 81 F.3d at 41-42.

       Martinez stated she felt Cleveland’s conduct was “designed to disrespect, humiliate, and

instill fear in fellow employees,” yet there is no mention of Cleveland’s gender other than to

refer to him as “Mr. Cleveland.” These letters did not allege unfair treatment on the basis of

gender sufficient to put the Department on notice. See Harris-Childs, 169 Fed. App’x at 916.

Moreover, we do not believe the content of Martinez’s letters would support an inference that

she was engaging in a protected activity, i.e. complaining of discrimination. Under these facts,

Martinez must produce some evidence of a protected activity before reaching the issue of

pretext. In the absence of statutorily protected activity, there can be no cognizable retaliation

claim under the TCHRA.




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                                          CONCLUSION

       Martinez failed to meet her burden to produce some evidence of a prima facie case of

retaliation. In the absence of a prima facie case, the burden did not shift to the Department to

demonstrate a legitimate nondiscriminatory purpose for Martinez’s termination; thus, we need

not reach Martinez’s remaining arguments that the Department’s stated reason for terminating

her was pretextual or that the discharge was motivated in part by retaliation. See TEX. R. APP. P.

47.1 (encouraging concise opinions addressing only those issues “necessary to final disposition

of the appeal”). Accordingly, the judgment of the trial court is affirmed.

                                                 Rebecca Simmons, Justice




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