### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00788- CV

Michael A. Ac osta, Appellant

v. City of Austin , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0050 0, H ONO RAB LE MARGARET A. CO OP ER, JUDGE P RESIDING

C O N C U R R

I N G A N D D I S S E N T I N G O P I N I O N

On this rec ord and apply i n g the corr ect standard of revie w, this employ ment
reta liation case is a matter for the jury

. Be cause Mr. Acosta established a prima fac ie case of

reta liation and issues of materia l fac t conce rning the City ’s proff ere d rea sons fo r its adver se employ ment actions are disput ed , s u m m ary judgme nt was improper. See M.D. Anderson Hosp.
& Tumor Inst. v. W

illri ch , 28 S.W .3d 22, 24 (Tex. 2000); Johnson v. City of Houston , 203 S.W .3d 7,
12 (Tex. App.—Houston [14t h Dist.] 2006, pet. d en i ed ); T exas Dep’ t of Crim. Justice v. Cooke , 149 S.W .3d 700, 705 (Tex. App.—Austin 2004, no pet.). I would conclude th at the di strict court

err ed by weig hing the evidenc e of reta liation, resolving issues of disputed fac t, and ruling as a matter of law tha t Acosta did not suffe r re taliation. 1

Acosta brough t h is claims of retaliation pursuant to the l abor code. See Tex. L ab. C ode 1 Ann. § 21.055 (West 2006). Section 21.055 o f t h e l ab o r code provides that an “employ er
. . . commits a

n unlawful employ

ment prac tice if the employ er
. . . reta liates or discriminates ag ainst aI there fore concur in the majority ’s opinion to the extent the majority conclude s that

Acosta timely filed suit ag ainst his former employ er, the City , and re s pectf ully dissent to the

rema inder of the opinion affirming the summary judgme nt in favor of

the City on Acosta’ s claims
of re taliation.
I n revie wing a summary judgme nt, we “must consider whether rea sonable and fairminded jurors could differ in their conclusions in light of all of the evidenc e prese nted.” Goodye ar Tire & Rubber Co. v. Maye s , 236 S.W .3d 754, 755 (Tex. 2007) (per curia m) (citation omitted); see also Tex. R. Civ. P. 166a(c ). We consider the evidenc e in the light most favor able to the nonmovant, indulging every rea sonable inferenc e and resolving any doubts in the nonm ovant’s favor. Maye s, 236 S.W .3d at 756; Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W .2d 546, 548-49 (Tex. 1985). Depa rting
from a corr ect application of the standard of revie w, the majority holds tha t Acosta “fa iled to r aise

a g enuine issue of materia l fac t reg arding whether the City ’s articula ted non-re taliatory rea sons” for
the adve rse e mploy

ment actions cha lleng ed by Acosta “ wer e pre text ual.”
The majority depar

ts from the summary judgme nt standard by concluding that, even i f Ac o s t a established a prima fac ie case of reta liation, the City ’s burden to show a leg itima t e, 2
person who, unde r this chapter . . . opposes a discr iminatory prac tice.” Id.
An employ ee est ab l i s h es a prima fac e case of reta liation by showing that he eng ag ed in 2 protec ted activity , an adver se employ ment action occur

red, and a causa l link exis ted betwee n the protec ted activity and the adver se action. Johnson v. City of Houston , 203 S

. W

. 3 d 7, 11 (Tex. App.—Houston [14t h Dist.] 2006, pet. deni ed ) (c i t ing Pineda v. United Parcel Serv., Inc. , 360 F.3d 483, 487 (5th Cir. 2004)). I n construing Acosta’ s petition, the majority unduly constricts Acosta’ s claims of reta liation. The majority states that Acosta alleg ed that the City ’s actions wer e taken in reta liation for “his complaints that his pay was lower than that of non-Hispanic employ ees with less experience and tenure .” I n his pleading s, howeve r, Acosta additionally alleg ed reta liation for his “objec tions t o h is written reprimand, [ his] resig nation letter citing unfair trea tment, and/or [hi s] charg e of discr imination filed in J une 2006.” 2non-re taliatory rea son for the a d v e r s e e mp lo y

me n t a c ti ons is “one of production and not persua sion.”
The majority confuse s an employ er’ s burden to defe at the leg al presumption of reta liation that arises
when an employ ee establishes a prima fac ie case of reta liation with an employ er’ s burden when the employ er is seeking summary judgme nt on a claim of re ta liation based on articula ted, non-re taliatory

rea sons for the c halleng ed adve rse e mploy ment actions.
Once an employ ee establishes a prima fac ie case , there is a leg al presumption that the employ er’s adver se actions wer e reta liatory

. See Ree ves v. Sanderson Plumbing Prods

. , Inc. , 530 U. S

. 133, 142-43 (2000). The employ er may defe at this leg al presumption by meeting its
“burde n of production” conce rning non-re taliatory rea sons for the adver se empl o y m en t action.
Id

. (quoting St. Mary’

s Honor Ctr. v. Hicks , 509 U.S. 502, 510-11 (1993))

. An employ er meets its
“burde n of production” by introducing “evide nce which, taken as true , would permit the conclusion
that there was a [non-retaliatory ] re ason for the adver se action.” Hicks , 509 U.S. at 509 (empha sis
in orig inal). I n contra st, an employ er seeking summary judgme nt based upon an alleg ed leg itimate,

non-re taliatory rea son for an adver se employ ment action, must prove its rea son as a matter of l aw
to be entitled to summary judgme nt on an employ ee’ s claims of reta liation. See W illri ch , 28 S.W .3d

at 24 (“B eca

use this is a summary judgme nt motion, the burden rema ined on [t he employ er] under
Rule 166a(c ) to prove as a matter of law a leg itimate, nondiscriminatory rea son for [t he employ ee]’s termination.”); Johnson , 203 S.W .3d at 12. 3

Although the City also soug ht no- evidenc e summary judgme nt, the parties ag ree that the 3 C i t y ’s claim that it had a leg itimate, non-re taliatory rea son for the adver se employ ment actions ag ainst Acosta is an a ffirma tive defe nse. See Tex. R. C iv. P. 94, 166a(i). 3That an e mploy er sa tisfied its burde n of production to de fea t the leg al presumption

of reta li at ion, then, does not alter the employ er’ s burden as the movant seeking summary judgme nt on the aff

irmative defe nse of a non-re taliatory rea son for its action. As our sister court in
Johnson explained,

Ordinar ily , if the employ er meets its burden of showing a leg itimate, nonreta liatory rea son for termination, then the plaintiff must prove that the employ er’ s stated rea son for the adver se acti o n wa s mere ly a prete x t for the rea l, reta liatory rea son.
. . . Howev er , beca

use t his appea l involves a sum mary judgme nt, the burden rema ined on the [employ er] to prove a leg itimate nonreta liatory rea son as a matter of law.

. . . There fore , [t he employ ee] could defe at the summary judgme nt by eith er : (1 ) establishing that the [employ er]’s summary judgme nt evidenc e failed to prove, as a matter of law, that the [employ er]’s proff ere d rea son was a leg itimate, nonreta liatory rea son for termination; or (2) offe ring evidenc e that otherwise raised a fac t issue with reg ard to pre text

.

203 S.W .3d at 12 (citations omitted); see also Niu v. Rev cor Molded Prods. Co. , 206 S.W .3d 723,
728 (Tex. App.—For

t Worth 2006, no pet.). Fur ther, the evidenc e conce rning the employ er’ s

rea sons for its actions is vie wed in the light most fa vorable to the employ ee, not “ taken as true” as such evidenc e is in the leg al presumption deter mination. See Hicks , 50 9 U. S

. at 509; W illri ch , 28 S.W .3d at 24; Johnson , 203 S.W .3d at 12.

When an employ ee has established a prima fac ie case of reta liation, probative
evidenc e that an employ er’ s articula ted rea sons for adver se actions are false may cre ate a fac t issue
p re cluding summary judgme nt. See Ree ves , 530 U.S. at 142-43 (citing Hicks , 509 U.S. at 5 0 9 );
Bowen v. El Paso Elec. Co. , 49 S.W .3d 902, 910 (Tex. A pp.—El Paso 2001, pet. denied) (quoting
Ree ves , 530 U.S. at 148) ( “‘[A] plaintiff’ s prima fa cie c ase, c ombined with sufficient e vidence to find that the employ er’ s asserte d justification is false, may permit the t rier of fac t to conclude tha t

4the employ er unlawfully discriminated.’” ). Whether summary judgme nt is appropr iate based upon

an empl o y er’s articula ted rea sons for adver se employ ment actions depends on numerous fac tors, including the “‘stre ng th of the [employ ee]’s prima fac ie case ’” and the “‘pr obative value of the proof
that the employ er’ s explanation is false.’ ” Litt le v. Texas Dep’ t of Crim. J ustice , 177 S.W .3d 624,
632 (Tex. App.—Houston [1st Dist.] 2005, n o p et.) (quoting Price v. Fed. Express Corp ., 283 F.3d 715, 720 ( 5th Cir. 2002)).

The City ’s summary judgme nt motion rested on adducing evidenc e of its aff irmative
defe nse t hat i t had legitimate, non-retaliatory rea sons for ea ch o f t he adverse employ ment actions
that Acosta challeng ed. The adver se employ ment actions challeng ed by Acosta wer e: (i) the City 4
issued a written repr imand ag ainst him in J anuar y 2006, (ii) the City terminated his employ ment by improperly apply ing it s p o l i cy that rese rved an employ ee’ s rig ht to withdraw a resig nation within
48 hours, an d (i i i ) t h e City failed to rehire him. I n response to the City ’s motion for summary judgme nt, Acosta prese nted evidenc e in response to eac h of the City ’s articula ted rea sons for taking

t h e ch all eng ed actions. When we view this evidenc e in the light most favor able to Acosta, the
evidenc e raises g enuine issues of materia l fac t whether the City ’s articula ted rea sons for eac h of the challeng ed adver se employ ment actions wer e false and a prete x t for its rea l rea son of reta liation. See
Tex. R. Civ. P. 166a(c ); Ree ves , 530 U.S. at 142- 43, 148. I limit my analy sis to the termination of
Acosta’ s employ

ment beca

use it exempli fies the plethor a of f act que stions here. 5

The City also moved for summary judgme nt based upon the timeliness of Acosta’ s suit and 4 on other aff

irmative defe nses that wer e applicable to Acosta’s discr imination claims but not to his claims of re taliation. They included the sa me ac tor and same national orig in defe nses. The parties prese nted con fl i ct i ng aff idavits and extensive deposition excerpts from 5 supervisors and employ ees at the plant conce rning eac h of t h e ad v er s e employ ment actions.
5The evidenc e conce rning the termination of Acosta’ s employ m en t ra ises g enuine
issues of materia l fac t as to the contours of the City ’s resig nation policy , whether the City corr ectly
descr ibed its policy , and whether it p ro p erly applied the policy to Acosta. The City ’s resig nation policy states:

To resig n in g ood standing , an employ ee shall submit his/her resig nation in writing to his/her Depa

rtment Direc tor at least ten working day s befor e the eff ective date of resi gn at ion. Any employ ee submitt ing a resig nation has 48 hours within which to rec onsider and rese rves the rig ht to withdraw the resig nation within this time limit

. An employ ee who g ives less than ten working day s notice may forf eit terminal pay
.

The e vidence showed that Acosta placed resig nation letters in the box es of the pl ant m anag er a nd plant s u p er i n tendent at the end of his shift on April 30, 2006, a Sunday

. I n his aff idavit, Acosta

aver red that his fathe r passe d awa y in April 2006 and that he “ was ve ry depre ssed about his death
and combined with the way I was being mistreated by [t he superintende nt] at work, I felt like I had

to g et awa

y from there .” I n the letters, Acosta stated that he wa s gi v i n g n otice that he would be
“v ac ati ng ” his position on May 9, 2006, and included among his rea sons that he did not fee l that
manag ement tre ated him “fairly .” He later sought to withdraw the r esig nation in acc ordanc e with the City ’s 48-hour policy , but the superintende nt did not acce pt his attempted withdrawa l.

The policy is silent conce rning when the 48-hour time period beg ins to r un, and the parties prese nted conflicting evidenc e on this issue. I n its motion for summary judgme nt, the City
contende d that the 48-hour time period had expired when Acosta at t empt ed to withdraw his

Acosta’ s evidenc e in response to the City ’s summary judgme nt als o i n cl uded his positive perf ormanc e eva luations from the City

. 6resig nation on Wednesday morning and, in any event, the City had discretion to immediately acc ept

his r esig nation. The City prese nted evidenc e that the time pe riod beg an to run on Sunday evening
when Acosta place d the letters in the box es at the end of his shift. Acc epting the City ’s evidenc e as true, the period expired on Tuesday evenin g. Acosta prese nted contra ry evidenc e that the City ’s
p o l i cy was that the time period beg an to run when manag ement actua lly rec eived his letter o f resig nation and that the superinte n d en t re ceive d and rea d his letter sometime afte r 7:30 a.m. on Monday morning

. Acc epting Acosta’ s evidenc e as true, the period for withdrawing his resig nation 6 expired at the ea

rliest sometime after

7:30 a.m. on Wednesday morning

.

During his deposition, the superintende nt testified that he did not think the plant manag er 6 was ther e Monday

morning . I n his affida

vit, Acosta ave rre d:
Af t er I s ubmitted my resig nation letter, I had second thoughts and decide d to withdraw my resig nation. I called Austin HR

. . . on Tuesday ear ly afte rnoon to ask about the policy

rela ted to withdrawing resig nations.
Ba sed upon the conver sation, Acosta aver red that he was told he “had until Wednesday morning to withdraw [hi s] resig nation.” Acosta also provided the aff idavit of Carol Ann Guthrie who was a union repr esenta tive with twenty y ear s of experience conce rning the City ’s “policies associate d with response deadlines r elated to a ll manner of issues to include . . . resig nations.” Guthrie a verr ed:
I am persona lly and profe ssional ly awa re that established prac tice by the City of Austin with reg ard to when a time limit b egi n s t o ru n for

. . . the City

. . . to take action is from the time of the rec eipt of the document; or, in this case , the resig nation letter. As a prac tical example, if an employ ee s u b mits a resig nation letter by US Mail, the 48 hours beg ins to run not from the date of the letter or date of the postmark, but the date that the letter was rec ei v ed by the City manag ement repr esenta tive. Simi larly , if the employ ee submit s his resig nation letter by placing it in the City manag ement repr esenta tive’s box at work, the 48 hours would beg in to run from the time the manag ement repr esenta tive actua lly rec eive d the letter by removing it from the box and reading it.
7During his deposition, the superintende nt testified conce rning Wednesday morning :

Q: So it was a normal wor kday . You g ot there a t 7:30?
A: Yes. Q: Okay . And what ha ppened? Did y ou see Mr . Acosta?
A: Yea

h. I came throug h the control room like I do ever y morn i n g an d chec k and see how things are g oing with the supervisor. I believe Mr. Acosta was working on the control board that day

. He had asked me if he could speak to me about something. And I said I —I think I said—I ’m not a hundred perc ent sure, exactly , what I said, but I thi n k I s ai d I had some meeting s and that I would catc h up with him as soon as my meeting s were over.
I n his affida vit, Acosta ave rre d:

I approa ched [t he superintende nt] Wednesday morning in the Control Room upon [t he s u p er i ntendent’s] arr ival and told him that I neede d to speak to him about my resig nation. [The superintende nt] cut me off, telling me that he could not meet with m e until have [si c] some meeting s that morning

. I went to [t he superintende n t ] befor e 10:00 to ag ain ask to speak with him, but he ag ain put me off until 11:00.

. . . I went to [t he superintende nt’s] office at 11:00 an d I wa s joined there by [t he superintende nt and two other people]. Ag ain, [t he superintende nt] cut me off when I tried to speak to him to tell him I wanted to withdraw my resig nation. [He] instead told me that he was acc epting my resig nation. I then told him that I wa s t ry ing to withdraw my resig nation, but he wo u ld not allow me to withdraw it. [He] did not make any mention that the 48 hour period had expired the night befor e. [He] did not make a ny mention of the 48 hour pe riod.

This evidenc e supports that a rea sonable fac t finder could conclude that Acosta soug ht to withdraw his resig nation by

speaking to the superintende nt before the 48-hour time pe riod expired. Although the parties prese nted conf licting e vidence when the f orty -eig ht hour time period beg an to run and when it expired, the majority weig hs the evidenc e and conclude s that Acosta

8did n o t t i m el y withdraw his resig nation. The majority comes to the conclusion that there is “no

dispute that Acosta did not withdraw his resig nati o n wi t h i n 4 8 hours” and further conclude s that
“ther e is no evidenc e that Acosta communicated his desire to exercise such relief within the 48-hour period or tha t he was in any way preve nted from doing so.” This issue w as shar ply disputed. The majority discounts Acosta’s unsuc cessf ul attempts to withdraw his resig nation during the 48-hour
time period by concluding that Acosta could have telephoned, e-ma iled, or place d a withdrawa l
notice in the superintende nt’s box during the rele vant time period. This exa m ple is only one of

sever al that demon s t ra t es that the manner in which apply ing the wrong standard of revie w undermines the court’s analy sis. When we view the evidenc e in the light most favor able to Acosta,
the evidenc e that Acosta attempted to speak with the s u p er intendent to withdraw his resig nation
befor e the 48-hour time period had expired raises g enuine iss u es o f materia l fac t conce rning the
contours of the pol icy and the City ’s application of t he poli cy t o Acosta. See Maye s , 236 S.W .3d
at 755-56.
The parties al s o p re sented other conflicting evidenc e conce rning the City ’s application of its policy to Acosta. The C ity prese nted evidenc e that the policy g ave the City 7

I disag ree with the majority ’s conclusion that “the City ’s possible motivation is not rele vant 7 to the analy sis.” Probative evidenc e that an employ er’ s st at ed re as ons for its actions are false may raise a fac t question with reg ard to prete x t. See Ree ves v. Sanderson Plumb i n g P r ods., Inc ., 530 U.S. 133, 1 47 (2000) (noting that “proof that the defe ndant’s explanation is unworthy of cr ed ence is simply one form of circ umstantial evidenc e that is probative of intenti o n al discrimination, and it may be quite persua sive”); Nasti v. CIBA Specialty Chems ., 492 S.W .3d 589, 594 (5th Cir. 2007) (“The prete x t inquiry focuse s on the authenticit y of the employ er’ s proff ere d rea son.”); Laxton v. Gap Inc. , 333 F.3d 572, 578 (5th Cir. 2003) (“A plaintiff may establish prete x t

. . . by showing that the employ er’ s proff ere d explanation is false or ‘unwo rt hy of cre dence .’”) (quoting Ree ves , 530 U.S. at 143; W allace v. Metho d i s t Ho s p. System , 271 F.3d 212, 220 (5th Cir. 2001)). 9discretion to acc ept a resig nation immediately when it was in the “best interest” of the City and that

is what happene d here

. The City prese nted evidenc e that it “proc essed” Acosta’ s resig nation on Monday and acc epted it immediately

. But if the City acc epted his resig nation immediately , why was Acosta working on Wednesday until the meeting with th e s u p erintendent? Fur ther, the superintende nt testified during his deposition that the policy allowing the City to acc ept a resig nation immediately applied only afte r the 48-hour time period had expired. The superintende nt testified:

A: I could ac cept his re signa tion, y es, ef fec tive immediately

. Q: Okay

. And when y ou say “ef fec tive immediately ,” did that mean M o n day morning ?
A: No. That meant afte r he—he’ s allowed 48 hours to resc ind his resig nation.

The superintende nt also testified during his deposition that he felt it was in the “best
interest of the company

” “to let [Acosta] g o rig ht awa y ” “base d on wh at [ Ac o s t a] wrote in his resig nation letter” that he was “mistreate d and unhappy ” beca use a “powe r plant is obviously not a place wher e—y ou know, it could be a dang erous place if

. . . y our mind is not set on what—conc entra ting on wor k. And I didn’t fee l tha t ba sed on his le tter that his mindset would be
safe enoug h to have him around the workplac e.” I n his aff idavit, the superintende nt’s stated rea sons for not allowing Acosta to withdraw his resig nation included that Acosta’ s letter of resig nation was

a “burns his bridg es” letter “by acc using manag ement of lies and slander” and that the safe ty of the plant was “par amount.” Yet he also testified that h e al l o we d Acosta to work for sever al hours on Wednesday morning befor e meeting with him “[b] eca use I wasn’t available at that time to talk with
him and I neede d to do my other duties first a

nd I was g oing to f

it him i n when I

had time.”

10I n addition to his i n co n s i s t ent testimony conce rning the City ’s decision to

immediately acc ept Acosta’ s resig nation, other portions of the superintende nt’s te s ti mo ny conflicte d
with the evidenc e. For example, the superintende nt te stified that when Acosta approa ched him on Wednesday morning that Acosta only asked if “he could speak to me about something.” He denied
that Acosta said that he wanted to talk about his resig nation. This testimony direc tly conflicte d with
Acosta’ s testimony that he told the superintende nt that he wanted to speak to h i m ab o ut his resig nation. When f

urther asked during his deposition why he did not acc ept Acosta’ s withdrawa l of his resig nation letter, the supe rintendent a nswere d:

Be cause I —based on his resig nation letter, I jus t fe l t that he wasn’t somebody that was happy at the plant , d i d n ’t trust manag ement for some rea son and wasn’t somebody

that we wa

nted in the workpla ce.

He did not specify the expiration of the 48-hour time period or h i s s afety conce rns. See Nasti 8

v. CIBA Specialty Chems ., 492 S.W .3d 589, 594 (5th Cir. 2007) (“A court may infer prete x t wher e [an employ er] has provided inc onsistent or conflicting explanations for its conduct.”)

Given the conflicting testimo n y , t he questions of whether the City ’s articula ted

reas o ns for its challeng ed actions wer e false and whether the City ’s actions wer e motivated by something other than those rea sons turn on finding s of cre dibilit y , a traditional function of the jury

. See Anderson v. Liberty Lobby, Inc. , 477 U. S

. 2 4 2 , 2 55 (1986) (“Cre dibilit y deter minations, the

There was also evidenc e that the superintende nt g ave Acosta a neg ative revie w, including 8 that Ac o s t a was a “troublema ker,” which testimony conflicte d with the testimony from other supervisors and the positive perf ormanc e evalua tions that Acosta rec eived during his e mploy ment with the City

. 11weig hing of the evidenc e, and the draw ing of leg itimate infere nces from the fac ts are jury functions,

not tho s e of a judge , whether he is ruling on a motion for summary judgme nt or for a direc ted
verdic t.”); Texas Dep’ t of Cmty. Affairs v. Burdine , 450 U.S. 248, 255 n.8 (1981) (re cog nizi ng the

nature of the “e lusive fac tual question of intentional disc rimination”); Golden Eagle Archery , Inc.

v. Jack son , 1 1 6 S.W .3d 757, 761 (Tex. 2003) (cr edibility deter minations, weig hing of the
evidenc e, and draw ing rea sonable infere nces from the fac ts are jury functions); Casso v. Brand , 776 S.W .2d 551, 558 (Tex. 1989) (whe n cre dibilit y of af fiant likely to be dispositi ve in r esolution
of case , summary judgme nt is not a ppropriate ); see also Ree ves , 530 U.S. at 141 (citation omitted) (fa ct finder in discrimination case s fac es questions that are “both sensitive and difficult” and “ther e will seldom be ‘ey ewitness’ te stimony as to the employ er’ s mental proce sses”).
When g enuine issues of fac t exis t, summary judgme nt is not appropr iate. My disag ree ment with the majority on the fac ts and the infere nces that should or can be draw n from the
fac t s

— as adduce d in this case —illust rate s that a fac t finder needs to decide whether the City ’s
adver se employ

ment actions ag ainst Acosta wer e in reta liation for his protec ted activities. I would
conclud e t hat the rec ord contains ample evidenc e that—on this rec ord—a rea sonable fac t finder
could find that the City ’s articula ted rea sons for its actions wer e prete x tual and false and, there fore , that the City failed to conclusively prove that it had leg itimate, non-re taliatory rea sons for its actions
to be entitled to summary judgme nt. See W illri ch , 28 S.W .3d at 24; Cooke , 149 S.W .3d at 705. I
would reve rse the trial court’s summary judgme nt in favor of the City and rema nd for a trial on the merits or other pr ocee dings.

12__________________________________________ J an P. Patterson, J ustice
Be fore J ustices Patterson, Pember ton and Waldrop Filed: June 30, 2010

13