Affirmed and Majority and Concurring Opinions filed August 1, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00528-CV

                          ERNEST NAVY, Appellant,
                                       V.

                 COLLEGE OF THE MAINLAND, Appellee.

                    On Appeal from the 10th District Court
                             Galveston County
                     Trial Court Cause No. 09-CV-0176

                     MAJORITY OPINION


      Appellant Ernest Navy appeals the trial court’s order granting summary
judgment in favor of appellee College of the Mainland (“Mainland”) on Navy’s
claims for employment discrimination and retaliation. We affirm.

                                        I

      Navy began working at Mainland as an adjunct professor in 2001. In 2004,
he applied for a full-time position as an associate professor of history in the Social
and Behavior Science Department (“the department”). Pursuant to Mainland’s
team-based structure, the entire Social and Behavior Science team (“the team”)
contributed to employment decisions, including hiring and awarding tenure.
Although several members of the team—particularly Steve Sewell and Rafael
Naranjo—doubted Navy’s qualifications, he was ultimately hired for the position.

       In August of 2007, Navy applied for tenure. Because his tenure file was
disorganized and included numerous spelling and grammatical errors as well as
several instances of plagiarism, the team unanimously voted to deny Navy tenure.
The team further decided by a 6–4 vote to deny Navy the opportunity to revise and
resubmit the file. Navy appealed, but the ad hoc committee that was formed to
review the appeal affirmed the team’s decision. Navy then appealed the
committee’s decision to the board of trustees.1 The board affirmed the denial but
voted to allow Navy to revise and resubmit his tenure file. After another committee
reviewed his revised file, they denied Navy tenure, explaining that “the
resubmitted file presentation [fell] significantly short of minimal or basic
expectations.” Navy appealed again, and, in December of 2009, the board of
trustees ultimately granted Navy tenure.

       Meanwhile, in the fall of 2009, Mainland had switched from its team-based
structure to a department structure. Pam Millsap was appointed as the department
chair and became Navy’s primary supervisor. Amy Locklear, the dean of general
education, became Navy’s secondary supervisor. James Templer was the vice
president of academic affairs. Over the course of the spring semester, Millsap and
Locklear progressively disciplined Navy several times for various conduct issues,
       1
        While the appeal was pending, Navy filed his original petition against Mainland,
alleging racial discrimination and retaliation. The suit was abated until Navy exhausted his
administrative remedies at Mainland.

                                             2
including repeatedly making false and unsubstantiated allegations against his
colleagues; repeatedly violating Mainland’s policies for proctoring exams and
administering student evaluations after being counseled on the proper methods;
assigning an excessive number of incomplete grades; inappropriately soliciting
emails from students; and receiving excessive student complaints regarding his
incorrect grade calculations, his failure to respond to students’ emails, and the lack
of organization of his online courses. Despite these disciplinary interventions,
Navy consistently failed to correct his behavior, so Millsap, Locklear, and Templer
recommended his termination. Pursuant to those recommendations and with the
support of the board of trustees, then-president Michael Elam terminated Navy in
July of 2010.

       Navy sued Mainland under the Texas Commission on Human Rights Act
(the “Act”), alleging disparate-treatment racial discrimination and retaliation.2
Mainland moved for summary judgment. The trial court granted the motion,
concluding that Navy failed to provide competent summary-judgment evidence to
allow a reasonable trier of fact to conclude that he was entitled to relief. Navy then
filed this appeal.

                                                II

       We review summary judgments de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). Because Mainland’s motion for summary
judgment is a hybrid traditional and no-evidence motion, we apply the applicable
       2
          Navy’s pleadings, as well as his summary-judgment and appellate briefing, do not make
clear the specific claims he is asserting against Mainland. In his live pleading at the time
Mainland filed its motion for summary judgment, Navy purports to sue for “Disparate
Treatment/Retaliation/Discrimination.” In his appellate brief, however, Navy raises just one
issue, that the trial court “erred in its grant of summary judgment,” and then divides his argument
into two sections. In the first section he appears to focus on a disparate-treatment theory and in
the second on retaliation. For the purposes of this opinion, we have divided his single issue into
two―one addressing disparate-treatment discrimination and the other retaliation.

                                                3
standards of review for each. See Tex. R. Civ. P. 166a(c), (i); Brockert v. Wyeth
Pharms. Inc., 287 S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.] 2009, no
pet.).

         In a traditional motion for summary judgment, the movant bears 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); Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 157 (Tex. 2004). A genuine issue of material fact exists
if more than a scintilla of evidence establishing the existence of the challenged
element is produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004). To be entitled to traditional summary judgment, a defendant must
conclusively negate at least one essential element of each of the plaintiff’s causes
of action or conclusively establish each element of an affirmative defense. Am.
Tobacco Co. v. Grinnell, Inc., 951 S.W.2d 420, 425 (Tex. 1997). Once the
defendant establishes its right to summary judgment as a matter of law, the burden
shifts to the plaintiff to present evidence raising a genuine issue of material fact to
defeat summary judgment. Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d
685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

         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. See Tex. R. Civ. P. 166a(i);
Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 908 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). We sustain a no-evidence summary judgment
when (a) there is a complete absence of evidence of a vital fact, (b) the court is
barred by rules of law or of evidence from giving weight to the only evidence

                                           4
offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no
more than a mere scintilla, or (d) the evidence conclusively establishes the opposite
of the vital fact. Lowe’s Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283,
287–88 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (citing Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Evidence does not
exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or
suspicion’” that the challenged fact exists. Akin, Gump, Strauss, Hauer & Feld,
L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (quoting
Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)).

      In reviewing either type of summary-judgment motion, we indulge every
reasonable inference from the evidence in favor of the non-movant, resolve any
doubts arising from the evidence in his favor, and take as true all evidence
favorable to him. Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 263
(Tex. App.—Houston [1st Dist.] 2005, pet. denied).

                                         III

      In his first issue, Navy argues the trial court erred in granting summary
judgment in favor of Mainland as to his disparate-treatment discrimination claim.

                                         A

      The Act prohibits discrimination in employment based on “race, color,
disability, religion, sex, national origin, or age.” Tex. Lab. Code § 21.051. The
relevant parts of the Act are patterned after Title VII of the federal Civil Rights
Act. Thus, we look to federal precedent for interpretive guidance to meet the
legislative mandate that the Act is intended to “provide for the execution of the
policies of Title VII of the Civil Rights Act of 1964 and its subsequent
amendments.” Id. § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473,


                                         5
476 (Tex. 2001).

      In resolving disparate-treatment cases, courts utilize a system of “burden
shifting” in which the burden of production shifts from the plaintiff to the
defendant and then back to the plaintiff. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142–43 (2000); McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–05 (1973). In employment-discrimination cases based on circumstantial
evidence, the plaintiff’s prima facie case relates to the employee’s burden of
presenting evidence that raises an inference of discrimination. Russo v. Smith
Intern., Inc., 93 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied). A prima facie case of racial discrimination requires proof that the plaintiff
(1) is a member of a protected class, (2) was qualified for the employment position
at issue, (3) was subject to an adverse employment action, and (4) was treated less
favorably than similarly situated members outside of the protected class. See
Reeves, 530 U.S. at 142; Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915,
917 (Tex. 2005) (per curiam).

      For purposes of discrimination, the Act only addresses ultimate employment
decisions; it does not address every decision made by employers that arguably
might have some tangential effect upon employment decisions. Mattern v.
Eastman Kodak Co., 104 F.3d 702, 707 (5th. Cir. 1997), abrogated on other
grounds by Burlington Ne. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006);
Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston [14th
Dist.] 2004, no pet.). Generally, ultimate employment actions involve hiring,
granting leave, discharging, promoting, and compensation, but not “events such as
disciplinary filings, supervisor’s reprimands, and even poor performance by the
employee—anything which might jeopardize employment in the future.” See
Mattern, 104 F.3d at 707–08.

                                          6
       Once a plaintiff has established a prima facie case of discrimination, the
burden shifts to the defendant to show a legitimate, non-discriminatory purpose for
the adverse employment action. Reeves, 530 U.S. at 142. If the defendant presents
a legitimate reason, the burden shifts back to the plaintiff to show either (1) the
stated reason was a pretext for discrimination, or (2) the defendant’s reason, while
true, is only one reason, and discrimination was another, “motivating,” factor.3
Gonzalez v. Champion Techs., Inc., 384 S.W.3d 462, 466 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004)). A plaintiff can avoid summary judgment if the evidence taken
as a whole creates a fact issue as to whether the employer’s stated reason was not
what actually motivated the employer and creates a reasonable inference that
discriminatory intent was a determinative factor in the adverse employment action.
Gonzalez, 384 S.W.3d at 466. Although the burden of production shifts as
described, the ultimate burden of persuasion remains on the plaintiff. Id.

                                                B

       It is undisputed that Navy, who is black, is a member of a protected class.
For the purposes of Navy’s disparate-treatment claim, the only relevant adverse
employment event was his termination.4 In its summary-judgment motion,
Mainland contends that Navy cannot show that any similarly situated employees
were treated more favorably. We agree.

       Employees are similarly situated if their circumstances are comparable in all


       3
          Because the federal courts are closely divided on the issue, we follow the plain meaning
of section 21.001(1) of the Texas Labor Code, which provides that a plaintiff establishes an
unlawful employment practice by showing that discrimination was a “motivating factor” for the
practice. See Quantum Chem. Corp., 47 S.W.3d at 474.
       4
        The initial tenure denials were not ultimate employment actions for the purposes of this
claim because Navy was ultimately granted tenure through Mainland’s internal appeals process.

                                                7
material respects, including similar standards, supervisors, and conduct. Univ. of
Tex. Med. Branch at Galveston v. Petteway, 373 S.W.3d 785, 789 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). To prove discrimination based on disparate
discipline, the disciplined and undisciplined employees’ misconduct must be of
“comparable seriousness.” Ysleta Indep. Sch. Dist., 177 S.W.3d at 917. Although
“precise equivalence” in culpability between employees is not the ultimate
question, the Fifth Circuit has held that to prove discrimination based on disparate
discipline, the plaintiff must usually show that the misconduct for which he was
disciplined or discharged was nearly identical to that engaged in by an employee
outside the plaintiff’s protected class who was not disciplined or discharged. Id. at
917–18 (citing Smith v. Wal-Mart Stores, Inc., 891 F.2d 1177, 1180 (5th Cir.
1990)).

      The record indicates that Navy was terminated because he failed to
positively respond to disciplinary intervention, specifically by continuously
making unsupported allegations against colleagues, delaying answering students’
emails, and exhibiting insubordinate behavior. Additionally, the quality of Navy’s
online courses was significantly substandard, he incorrectly calculated students’
grades dating back to at least the summer of 2008, and he inappropriately assigned
an excessive number of incomplete grades in the spring of 2010. Navy’s
unsatisfactory performance was also the subject of an excessive number of student
complaints. Moreover, a high-school principal whose students took classes at
Mainland requested that her students be assigned to any instructor other than Navy.

      There is no evidence in the record of any other professor at Mainland with a
similar history of misconduct and performance issues. Therefore, the trial court did
not err by granting summary judgment as to Navy’s disparate-treatment claim



                                         8
because he offered no evidence of at least one essential element of the claim.5

                                            IV

       In his second issue, Navy argues the trial court erred by granting summary
judgment in favor of Mainland on his retaliation claim.

                                            A

       To make a prima facie showing of retaliation, a plaintiff must show that (1)
he engaged in a protected activity, (2) an adverse employment action occurred, and
(3) a causal link existed between the protected activity and the adverse action.
Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004); Dias v.
Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied). Protected activities consist of opposing a discriminatory practice;
making or filing a charge; filing a complaint; or testifying, assisting, or
participating in an investigation, proceeding or hearing. Tex. Lab. Code § 21.055;
Dias, 214 S.W.3d at 676. If the plaintiff meets this requirement, the burden shifts
to the defendant to demonstrate a legitimate, non-discriminatory purpose for the
adverse employment action. Pineda, 360 F.3d at 487; Dias, 214 S.W.3d at 676.
The plaintiff then assumes the burden to present proof that the stated reason was
pretextual. Gonzalez, 384 S.W.3d at 466. “To carry this burden, the plaintiff must
rebut each non-discriminatory or nonretaliatory reason articulated by the
employer.” McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007), quoted
in Ellini v. Ameriprise Financial, Inc., 881 F. Supp. 2d 813, 820 (S.D. Tex. 2012)
(Ellison, J.) (granting summary judgment on discrimination and retaliation claims
asserted under the TCHRA).

       Unlike the disparate-treatment provisions in the Act, the scope of the
       5
         Having reached this conclusion, we need not address Mainland’s argument that there
was insufficient evidence to show that Navy was qualified for the position.

                                            9
antiretaliation provision is not limited to conduct that constitutes “ultimate
employment decisions”; rather, the provision “extends beyond workplace-related
or employment-related retaliatory acts and harm.” Burlington Ne. & Santa Fe Ry.
Co., 548 U.S. at 67 (rejecting the standard in Mattern to the extent it treated the
antiretaliation provision as forbidding only the limited category of “ultimate
employment     decisions”    prohibited      by   the   antidiscrimination   provision).
Nevertheless, the antiretaliation provision protects an individual not from all
retaliation, but from actions that a reasonable employee would have found
materially adverse. Id. at 67–68. “Material” employer actions are those “that are
likely ‘to deter victims of discrimination from complaining to the EEOC,’ the
courts, and their employers.” Id. at 68 (quoting Robinson v. Shell Oil Co., 519 U.S.
337, 346 (1997)). Normally, petty slights, minor annoyances, and simple lack of
good manners will not create such deterrence. Id. This objective standard is applied
to a fact-specific inquiry “because the significance of any given act of retaliation
will often depend upon the particular circumstances. Context matters.” Id. at 69.
This standard is tied to the challenged retaliatory act, not to the underlying conduct
that forms the basis of the complaint. Id.

      In addition, unlike claims for discrimination subject to section 21.125(a),
which require just a “motivating factor” causation standard, retaliation claims
under section 21.055 are subject to the traditional “but for” measure. Ptomey v.
Tex. Tech Univ., 277 S.W.3d 487, 497 & n.11 (Tex. App.―Amarillo 2009, pet.
denied) (relying on Pineda, 360 F.3d at 488–89); see Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2533 (2013) (discussing the causation requirement for a
retaliation claim brought under Title VII). In other words, the plaintiff must prove
that he would not have suffered an adverse employment action “‘but for’ engaging
in the protected activity.” Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 685 (5th


                                             10
Cir. 2001); Long v. Eastfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996)
(“[E]ven if a plaintiff’s protected conduct is a substantial element in a defendant’s
decision to terminate an employee, no liability for unlawful retaliation arises if the
employee would have been terminated even in the absence of the protected
conduct.”).

                                              B

       In this case, it is undisputed that Navy engaged in several protected
activities. In November of 2006, he filed a grievance against Naranjo, complaining
that Naranjo had repeatedly made racially insensitive remarks and that the team
had failed to resolve the problem. In January of 2008, he filed affirmative-action
grievances accusing Templer and Bob Young, another supervisor, of
discrimination.6 Additionally, while the first appeal to the board of trustees was
pending in 2008, Navy filed a complaint with the Texas Workforce Commission
(“TWC”), alleging racial discrimination and retaliation. Navy also filed a civil suit
against Mainland during that time, but it was abated until Mainland’s
administrative review of Navy’s tenure file was complete.

                                              1

       The first alleged retaliatory action Navy identifies is a peer evaluation from
2007 in which his colleagues gave him low scores. The evaluation also included
anonymous comments, most of which were negative and one of which specifically
stated, “His behavior of falsely accusing a member and the whole team indirectly


       6
          In the grievance, Navy alleged Templer and Young discriminated against him by
disciplining him for sending an unprofessional email to Sewell but not disciplining Sewell for
making unprofessional spoken comments to Navy. Mainland found insufficient evidence to
support the grievance. Additionally, during his deposition, Navy was asked whether he believed
Young, who is also black, discriminated against him based on race, and Navy replied, “I’m not
going to say that. . . . I mean, you have to ask him.”

                                             11
as practicing racism and forcing confession during the past few months has been
extremely divisive, insidious and defensive.” Although this was clearly linked to
the grievance Navy filed against Naranjo (to which the team had filed a unified
response), we conclude that a negative peer evaluation would not deter a
reasonable victim of discrimination from complaining about the discriminatory
conduct and is thus not a materially adverse action. See Burlington, 548 U.S. at 68.
Therefore, it is not actionable retaliation under the Act.

                                           2

      Navy also alleges that the initial tenure denials and his termination were
retaliatory adverse employment actions. There is little if any evidence in the record
to show a causal link between any of Navy’s protected conduct and these events.
But assuming without deciding that Navy established a prima facie case of
retaliation and shifted the burden to Mainland, Mainland provided substantial
evidence to show legitimate, nonretaliatory reasons for those actions.

      With respect to the tenure denials, Mainland presented evidence that Navy’s
tenure file was disorganized and contained multiple instances of plagiarism, as
well as numerous spelling and grammatical errors. In addition to these errors, a
report by the first ad hoc review committee indicates that Navy was unreceptive to
feedback, he used learning outcomes that were meant for elementary and high-
school students and were not approved by the department, and his tenure file was
missing student evaluations. Moreover, the committee questioned Navy’s
professional judgment and ethics because, for example, in his tenure file, Navy
included what appeared to be a single email but was actually portions of two
separate emails that he combined to change their meaning. Additionally,
Mainland’s attorney received an anonymous handwritten letter that purported to
reveal a conspiracy by the initial tenure-review team to make it difficult for Navy

                                          12
to receive tenure. Navy claimed that he believed Michele Betancourt, the only
other black professor on the team, may have written the letter, but Betancourt
denied the same, and a handwriting expert determined that the letter was in Navy’s
handwriting.

      Similarly, Mainland showed numerous legitimate, nonretaliatory reasons for
Navy’s termination, which are supported throughout the record. As previously
discussed, Mainland showed that Navy failed to positively respond to disciplinary
intervention, specifically by making unsupported allegations against colleagues,
belatedly answering students’ emails, and behaving insubordinately. Mainland also
showed that the quality of Navy’s online courses was significantly substandard, he
incorrectly calculated students’ grades dating back to at least the summer of 2008,
and he inappropriately assigned an excessive number of incomplete grades in the
spring of 2010. Navy’s unsatisfactory performance was the subject of an excessive
number of student complaints, and further, a high-school principal whose students
took classes at Mainland requested that her students be assigned to any instructor
other than Navy.

      In both his summary-judgment response and appellate brief, Navy attempts
to rebut some of the nonretaliatory reasons Mainland gives for his tenure denials
and termination: “When he was challenged with regards to the student evaluations,
he went out and provided supporting documents reflecting good evaluations. When
he was challenged by his colleagues’ attacks, he obtained statements from other
colleagues to address his skills and contributions to the institution.” But providing
good evaluations from other students does not demonstrate that the poor
evaluations that caused Mainland’s concerns were false. Similarly, the positive
statements he obtained from other colleagues, who incidentally were not members
of the Social and Behavior Science team, do not negate the negative reviews

                                         13
voiced by his fellow team members.

         As for Mainland’s other nonretaliatory reasons, Navy leaves them
unrebutted in both his summary-judgment and appellate briefing. See McCoy, 492
F.3d at 557 (holding that to show the employer’s proffered reason is just a pretext,
“the plaintiff must rebut each non-discriminatory or nonretaliatory reason
articulated by the employer”). In a case such as this, to defeat summary judgment
the plaintiff must raise a genuine issue of material fact on each of the articulated
nonretaliatory justifications. See id. Because retaliation claims are subject to the
“but for” causation standard, asserting that discrimination or retaliation was a
“motivating factor” accompanying an unchallenged nonretaliatory reason is
insufficient to defeat summary judgment. See Ptomey, 277 S.W.3d at 497 & n.11
(holding that plaintiff in a retaliation claim must satisfy the “but for” causation
standard).

         Navy has failed to raise a genuine issue of material fact on the question of
whether the nonretaliatory reasons Mainland articulated for the adverse
employment actions against Navy were pretextual. Accordingly, the trial court did
not err by granting summary judgment in favor of Mainland on Navy’s retaliation
claim.

                                         ***

         We overrule Navy’s issues and affirm the trial court’s judgment.




                                        /s/     Jeffrey V. Brown
                                                Justice

Panel consists of Justices Brown, Christopher, and McCally (Christopher, J.,
concurring).

                                           14
