Affirmed in Part and Reversed and Remanded in Part and Memorandum
Opinion filed September 30, 2014




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-13-00646-CV

                         PATRICE BARNES, Appellant
                                        V.

 THE TEXAS A&M UNIVERSITY SYSTEM AND PRAIRIE VIEW A&M
                  UNIVERSITY, Appellees

                On Appeal from the 506th Judicial District Court
                            Waller County, Texas
                     Trial Court Cause No. 11-10-21109

                   MEMORANDUM OPINION


        Appellant Patrice Barnes appeals the trial court’s order granting summary
judgment in favor of appellees The Texas A&M University System and Prairie
View A&M University on Barnes’s claims for employment discrimination, hostile
work environment, and retaliation. We affirm in part and reverse and remand in
part.
                                       BACKGROUND

       Barnes was hired by Prairie View A&M University (the University) in 1994
and served as an agent in the University’s Cooperative Extension Program (CEP).

       In 2007, Barnes began to complain to CEP officials about alleged
harassment and a hostile work environment. Barnes’s complaints primarily focused
on her interaction with and treatment by her supervisor, Lupe Linderos, but also
expressed concerns regarding incidents with other colleagues. In response, CEP
officials held a meeting with Barnes to discuss and address Barnes’s concerns.
Barnes’s complaints continued after the meeting, so in late 2009, she was
authorized to work from home by a supervisor. Approximately four months after
Barnes began to work from home, the University notified her that her employment
was terminated effective April 15, 2010.

       Barnes filed this suit alleging disparate treatment discrimination, hostile
work environment, and retaliation under the Texas Commission on Human Rights
Act. Texas A&M and the University moved for summary judgment on no-evidence
grounds. Barnes filed a response to the no-evidence motion, and two days later
Texas A&M and the University filed a “Traditional Motion for Summary
Judgment and Reply to Plaintiff’s Response to Defendant’s No-Evidence Motion
for Summary Judgment.” Ten days after Texas A&M and the University filed their
traditional motion for summary judgment, the trial court granted summary
judgment on no-evidence grounds.1

       1
          Under a liberal construction of Barnes’s live petition, Barnes asserts claims against
Prairie View A&M University and the Texas A&M University System. The record indicates that
Barnes obtained service of citation only on Prairie View A&M University. Nevertheless, the
motion for no-evidence summary judgment in this case purportedly indicates that both Prairie
View A&M University and the Texas A&M University System are making appearances to
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                     STANDARD OF REVIEW AND APPLICABLE LAW

       We review summary judgments de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005); Navy v. Coll. of the Mainland, 407 S.W.3d 893,
897 (Tex. App.—Houston [14th Dist.] 2013, 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); Navy, 407 S.W.3d at 898.

       A no-evidence motion is properly granted when (a) there is a complete
absence of evidence of a vital fact; (b) the court is barred by rules of law or
evidence from giving weight to the only evidence offered to prove a vital fact; (c)
the evidence offered to prove a vital fact is less than a scintilla; or (d) the evidence
conclusively establishes the opposite of a vital fact. Navy, 407 S.W.3d at 898. The
evidence is less than a scintilla if it is so weak as to do no more than create a mere
surmise or suspicion that the challenged fact exists. Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 601 (Tex. 2004). We indulge every reasonable inference in favor
of the non-movant, resolve any doubts arising from the evidence in her favor, and
take as true all evidence favorable to her. Valence, 164 S.W.2d at 661; Navy, 407
S.W.3d at 898.

contest Barnes’ claim. The trial court’s order awards summary judgment to both the Texas A&M
University System and Prairie View A&M University. At no point did Barnes challenge Texas
A&M University System’s participation in the case; therefore, any such contention is waived.
See Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003) (“An argument that an
opposing party does not have the capacity to participate in a suit can be waived by a party’s
failure to properly raise the issue in the trial court.”). And, on appeal, Barnes does not challenge
the summary judgment rendered in favor of the Texas A&M University System. Therefore,
Barnes waives any challenge to the judgment in favor of the Texas A&M University System. See
Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 523–24 (Tex. App.—Houston [1st
Dist.] 2000, pet. denied).

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      The Texas Commission on Human Rights Act prohibits discrimination by
employers based on “race, color, disability, religion, sex, national origin, or age.”
See Tex. Lab. Code § 21.051. An employer commits an unlawful employment
practice if, on one or more of these grounds, it fails or refuses to hire someone;
discharges someone; discriminates in any other manner against someone in
connection with compensation or the terms, conditions, or privileges of
employment; or limits, segregates, or classifies an employee or applicant for
employment in a manner that would deprive or tend to deprive that person of an
employment opportunity or adversely affect the person’s status. Id. 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,” and the relevant parts of the
Act are modeled after Title VII. Id. § 21.001(1); Navy, 407 S.W.3d at 898. Thus,
we look to federal precedent for interpretive guidance. Navy, 407 S.W.3d at 898.

                               ISSUES AND ANALYSIS

      In three issues, Barnes contends that the trial court erred in granting
summary judgment in favor of the University on her claims of disparate treatment
discrimination, hostile work environment discrimination, and retaliation.

      I.     Disparate Treatment Discrimination Claim

      In her first issue, Barnes asserts that the trial court erred in granting
summary judgment as to her disparate treatment discrimination claim.

      In resolving discrimination cases, courts utilize a system of “burden-
shifting” in which the burden of production shifts from plaintiff to 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
(1973). Under this system, the plaintiff must first present a prima facie case of


                                         4
discrimination establishing that the plaintiff (1) was a member of a protected class;
(2) qualified for the employment position at issue; (3) suffered an adverse
employment action, which includes termination; 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). Once a plaintiff has established a prima facie case of
discrimination, the burden shifts to the defendant to produce evidence of a
legitimate, non-discriminatory reason for the adverse employment action. Reeves,
530 U.S. at 142. If the defendant produces such evidence, 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. Navy, 407 S.W.3d at 899.

      Barnes, who is black, is a member of a protected class. Likewise, her
termination constitutes an adverse employment action. In its summary-judgment
motion, the University contends that there is no evidence that Barnes received
disparate treatment compared to similarly situated employees outside of the
protected class. We agree.

      Employees are similarly situated if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct. Monarrez,
177 S.W.3d at 917. To prove discrimination based on disparate discipline, the
disciplined and undisciplined employees’ misconduct must be of comparable
seriousness. Id. Additionally, the situations and conduct of the employees in
question must be “nearly identical.” AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 594
(Tex. 2008) (per curiam). Employees with different responsibilities, supervisors,
capabilities, work rule violations, or disciplinary records are not considered to be
“nearly identical.” Id.

                                          5
       In her response to the University’s summary-judgment motion, Barnes
alleges that she was terminated because she violated University policy by working
from home. To establish disparate treatment, Barnes complains that two non-black
coworkers, Mike Shockey and Connie Sheppard, violated employment policies but
were not disciplined. Specifically, she alleges that Shockey made racist remarks at
a community outreach event in 2008, and that Sheppard was late to at least one
event between 2007 and 2010. But the alleged incidents, without more, are too
dissimilar to Barnes’s alleged misconduct to show that Shockey and Sheppard are
similarly situated coworkers; therefore, Barnes has failed to raise a fact issue on
her disparate treatment claim. See id. at 594–95; see also Perez v. Tex. Dep’t of
Criminal Justice, 395 F.3d 206, 213 (5th Cir. 2004) (explaining that for employees
to be similarly situated, the employees’ circumstances, including their misconduct,
must have been nearly identical). Accordingly, we overrule Barnes’s first issue.

      II.    Retaliation

      In a second issue, Barnes asserts that the trial court erred in granting
summary judgment as to her claim against the University for retaliation.

      To make a prima facie case of retaliation, a plaintiff must show that (1) the
plaintiff engaged in a protected activity; (2) an adverse employment action
occurred; and (3) a causal       connection existed between participation in the
protected activity and the adverse employment action. Pineda v. United Parcel
Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004); Navy, 407 S.W.3d at 900; Feng v.
Sabic Americas, Inc., No. 14-07-00699-CV, 2009 WL 679669, at *2 (Tex. App.—
Houston [14th Dist.] Mar. 17, 2009, pet. denied) (mem. op.). 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; Navy, 407 S.W.3d at 900. If the plaintiff

                                          6
meets this requirement, the burden shifts to the employer to rebut this presumption
by articulating a legitimate, non-discriminatory reason for the adverse employment
action. Pineda, 360 F.3d at 487; Navy, 407 S.W.3d at 900; Feng, 2009 WL
679669, at *2. If the defendant meets its burden, then the presumption raised by the
prima facie case is rebutted and the employee has the burden of proving that the
employer’s proffered reason is a pretext and that engaging in the protected activity
was the but-for cause of the adverse employment action. Pineda, 360 F.3d at 485;
Navy, 407 S.W.3d at 900; Feng, 2009 WL 679669, at *2.To carry this burden, the
plaintiff must rebut each non-discriminatory reason given by the employer. McCoy
v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007); Navy, 407 S.W.3d at 900.

      The University contends that Barnes failed to make a prima facie case
because she offered no evidence that she engaged in a protected activity and no
evidence that there was a causal connection between any alleged protected activity
and her termination. The parties agree that Barnes’s termination constitutes an
adverse employment action.

      A.     Engagement in a protected activity
      The only protected activity that Barnes asserts she engaged in is complaining
to various supervisors. Complaining to a supervisor about harassment based on
race, color, disability, religion, sex, national origin, or age by coworkers is a
protected activity for the purposes of establishing a prima facie case of retaliation.
See Gonzalez v. Champion Techs., Inc., 384 S.W.3d 462, 472–73 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Actionable retaliation exists when an employer
makes an adverse employment decision against an employee who voices
opposition to conduct unlawful under the Texas Commission on Human Rights
Act. See City of Waco v. Lopez, 259 S.W.3d 147, 152 (Tex. 2008). A plaintiff must
therefore present evidence that she complained about harassment or discrimination

                                          7
based on race, color, disability, religion, sex, national origin, or age for the
complaint to qualify as a protected activity for the purpose of establishing a prima
facie case of retaliation. See Chandler v. CSC Applied Techs., LLC, 376 S.W.3d
802, 823–24 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Gonzalez, 384
S.W.3d at 472–73.

      Barnes offers evidence in depositions and attached e-mails demonstrating
complaints to supervisors about unfair treatment by Lupe Linderos and other
colleagues, but none of these complaints alleged unfair treatment based on race,
color, disability, religion, sex, national origin, or age. But, evidence in the record
demonstrates that Barnes complained to Dr. Carolyn Nobles in 2008 of allegedly
race-based comments made by Barnes’s colleague Mike Shockey. Unlike the
general complaints of unfair treatment by Linderos, this complaint focuses on race-
based harassment and therefore constitutes a protected activity under the Act. See
Gonzalez, 384 S.W.3d at 472–73.

      B.     Causal connection between participation in the protected activity
             and the adverse employment action
      Barnes must also offer evidence to establish a causal connection between
participation in the protected activity and the termination of her employment.
Circumstantial evidence sufficient to show a causal connection between an adverse
employment action and participation in a protected activity 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) temporal proximity
between the protected activity and the termination. Crutcher v. Dallas Indep. Sch.


                                          8
Dist., 410 S.W.3d 487, 494 (Tex. App.—Dallas 2013, no pet.).

      As evidence of the causal connection between her participation in a
protected activity and her termination, Barnes points to the temporal proximity
between the two events and the fact that she was not “afforded the benefit of [the
University’s] progressive disciplinary policy.” Furthermore, Barnes points to
deposition testimony of one of her supervisors, Dr. Daniels, in which he stated that
“it may be possible” that Barnes’s employment was terminated in retaliation for
her complaints.

      Although Barnes’s contention that the University denied her the benefit of
its “progressive disciplinary policy” may be construed as an allegation that the
University did not follow its usual procedures in terminating her employment, she
does not offer any evidence on this point. Other than Barnes’s assertions in her
summary-judgment response and appellate brief that she was not afforded this
benefit, the record contains no reference to the policy, no evidence demonstrating
that it exists, and no indication that the University usually follows such a policy
when it terminates employees. Without more, Barnes offers no evidence that the
University failed to follow its usual policies when it terminated her employment.

      Similarly, Dr. Daniels’s deposition testimony was not evidence of a causal
link between the protected activity and termination of Barnes’s employment.
Although Dr. Daniels states that “it may be possible” that Barnes’s employment
was terminated in retaliation for her complaints, this testimony does not transcend
mere suspicion. See Ridgway, 135 S.W.3d at 601. It is no evidence. Id.

      Finally, Barnes asserts that, by way of her complaints to her supervisors, she
engaged in a protected activity until the termination of her employment in April
2010. Barnes contends that the close temporal proximity between the termination
and the time she engaged in the protected activity establishes the necessary causal
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link. Despite her numerous complaints, though, the only complaint that constituted
a protected activity was her complaint about allegedly race-based comments by
Mike Shockey. The record indicates that Barnes made this complaint to Dr. Nobles
in 2008. The record also indicates that Barnes complained about Shockey’s
comments to Dr. Daniels, though the evidence does not demonstrate when that
specific complaint was made.2

       Retaliation need not be immediate to be actionable and there is no hard-and-
fast-rule that any specified amount of time is too removed to find an inference of
causation. San Antonio Water Sys. v. Nicholas, No. 04-12-00442-CV, ___ S.W.3d
___, 2013 WL 5730592, at *7 (Tex. App.—San Antonio Oct. 23, 2013, pet. filed).
But, if the only offered circumstantial evidence of causation is temporal proximity
between the protected activity and the alleged retaliatory action, then “those events
must be very close in time for that evidence to be sufficient for a jury to infer a
retaliatory motivation.” Id.; see Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
273–74 (2001) (holding that an adverse employment action taken twenty months
after the protected activity “suggests, by itself, no causality at all”); Azubuike v.
Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex. App.—Houston [14th Dist.] 1998, no
pet.) (holding that a two-and-a-half year gap between the protected activity and the
adverse employment action, “with nothing more, is too long to establish that there
was a causal connection”).

       Barnes offers no evidence that she engaged in a protected activity after June
2008, and her employment was terminated effective April 15, 2010. Without more,

       2
         We are mindful that we must construe the summary-judgment evidence in the light most
favorable to Barnes, but we see no scenario in which the evidence demonstrates that Barnes
made complaints about Shockey’s comments to Dr. Daniels shortly before her termination.
Although Barnes asserts that she made general complaints up until she was terminated, in her
own deposition testimony Barnes stated that the complaints concerned “the issues that were
going on in the county office,” not past statements made in 2008 by Shockey.

                                             10
her evidence that she engaged in a protected activity nearly two years prior to the
termination does not establish the necessary causal link to support her prima facie
case. See id.

       We overrule Barnes’s second issue regarding her retaliation claim.

       III.     Hostile Work Environment Claim
       In a third issue, Barnes asserts that the trial court erred in granting summary
judgment as to her hostile work environment claim against the University.

       The University argues that Barnes failed to raise a fact issue on this claim;
however, a review of the record reveals that the University never asserted a no-
evidence point as to Barnes’s hostile work environment claim in its no-evidence
motion for summary judgment. The University raised its no-evidence point
regarding Barnes’s hostile work environment claim only once, in a reply to
Barnes’s response.3 Summary judgment grounds may not be raised for the first
time in a reply. See Tex. R. Civ. P. 166a(i); TIG Ins. Co. v. Via Net, 178 S.W.3d
10, 16 n.6 (Tex. App.—Houston [1st Dist.] 2005), rev’d on other grounds, 211
S.W.3d 310 (Tex. 2006); LaRue v. Chief Oil & Gas, L.L.C., 167 S.W.3d 866, 875–
76 (Tex. App.—Fort Worth 2005, no pet.); Meru v. Huerta, 136 S.W.3d 383, 390
n.3 (Tex. App.—Corpus Christi 2004, no pet.) (citing Judge David Hittner &
Lynne Liberato, Summary Judgments in Texas, 54 Baylor L. Rev. 1, 8–9 (2002)).

       Because the University did not raise a no-evidence point in its motion for
summary judgment regarding Barnes’s hostile work environment claim, the trial
court erred in granting summary judgment on that claim. Accordingly, we sustain
the third issue.

       3
          The University’s reply to Barnes’s response was included in its motion for traditional
summary judgment, but this motion was not served at least twenty-one days before the time
specified for hearing. See Tex. R. Civ. P. 166a(c).

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                                    Conclusion

      We affirm the trial court’s order granting summary judgment to the
University on Barnes’s claims of disparate impact discrimination and retaliation.
We reverse the trial court’s order granting summary judgment to the University on
Barnes’s claim of hostile work environment. We sever and remand that claim for
further proceedings consistent with this opinion.




                                       /s/    Ken Wise
                                              Justice



Panel consists of Chief Justice Frost and Justices Jamison and Wise.




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