## NUMBER 13 - 1 2 - 00 629 - CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- 

## EDINBURG

ROD LEWIS , Appellant,

v. LOWE’S HOME CENTERS, INC. , A ppellee.

On appeal from the 347th District Court of Nueces County, Texas.



## MEMORANDUM OPINION
Before Justices Benavides , Perkes , and Longoria Memorandum Opinion by Justice Perkes Appellant Rod Lewis brought suit against appellee Lowe’s Home Centers, Inc. (Lowe’s) for , among other things, retaliatory discharge under the Texas Commission on Human Rights Act (TCHRA), alleging Lowe’s terminated Lewis’s employment because he reported sexual harass ment

. The sexual

- harassment allegation related to a physical2

altercation between Lewis and another Lowe’s employee. The trial court granted Lowe’s motion for traditional summary judgment on Lewis’s retaliatory discharge claim. By three issues, Lewis argues sum mary judgment was improper because Lewis raised a genuine issue of material fact on (1) whether Lewis engaged in protected activity under the TCHRA; (2) causation; and (3) whether Lowe’s explanation for termination was a pretext. We affirm.
I. BACKGROUND Lewis was a district manager for Lowe ’ s. On August 19, 2009, Lewis attended a district manager and regional staff meeting. During a break at the meeting , there was a physical altercation between Lewis and Rocky Jarvis, a regional staff member. Other district and regional staff members at the meeting heard loud voices

. In response to the altercation, Teresa Johnson, the regional vice

- president, and Terry Gillespie, a regional human resources mana ger, talked to Jarvis and Lewis and requested Le wis, Jarvis, and the other witnesses submit written report s describing the altercation. That same day, Lewis emailed his written report, which provided in full: On Wednesday, August 19, 2009 we were having a 2nd Qtr Regional DM/Staff Meeting. At approximately 10:00 am, we were given a 5 minute break. Rocky exited the conference room and I behind him. I said to Rocky, “Pick it up buddy, let’s go. Your [sic] wal k ing like a staff member[.”] He got angry and said I take offence [sic] to that. He followed me to the coffee pot, very upset. I though t Rocky was playing at first. I then realized he was not playing, I said Rocky stop, settle down. He continued to raise his voice, talking about how angry he was. I tried to remove myself from the situation stepping backward away from him. He began to l eave the kitchen and then came back. He continued yelling, I looked away from him not saying anything. He put both his hands on my face so as to turn my face toward him. I stepped backward again and said, Rocky stop. At this time he left the kitchen an d office still very upset.3

Jarvis wrote two reports, and in both he alleged Lewis provoked the altercation by making provocative remarks and pushing Jarvis . Lewis denies pushing Jarvis

. According to Johnson’s deposition testimony , the regional staff became concerned in July 2009 on discovering that Lewis implemented unauthorized discounts in his district’s stores. Johnson testified that she also learned that Lewis had spread rumors about Gillespie and another Lowe’s employee to Johnson’s person al administrative assistant and that Lewis had asked the administrative assistant to investigate his claims. Johnson considered Lewis’s alleged rumors and request to a non

- salaried administrative assistant , rather than to herself , to be inappropriate. Jo hnson testified that because of her concerns, she and Lester Arnold, the Divisional Human Resources Director, decided to discipline Lewis . They planned to meet with him at the August 19, 2009 meeting and administer to him a “Final Notice,” Lowe’s most sev ere disciplinary measure

. In Lowe’s summary

-

judgment motion, Lowe’s incl uded a copy of an email from John son to Arnold , dated August 18, 2009 , that included a “Final Notice” form. The form
states , “Rod has demonstrated negligent and unprofessional conduct in his role as a District Manager.” The exhibit also includes Arnold’s responsive email sent at 7 :59 a.m. on August 19, 2009

. Arnold recommended Johnson change the wording in the notice and inc lude the details of Lewis’s unauthorized discounts and “unauthorized investigation into alleged misconduct involving members of the regional staff which were false.” Later that morning, the altercation between Jarvis and Lewis occurred

. Johnson testifi ed that she and Arnold decided to postpone the conversation with Lewis regarding the conduct outlined in the final notice, and they did not give Lewis the final notice on that4

date as planned

. Johnson testified that Arnold concluded from his investigation of the altercation that Lewis initiated it. According to Johnson, that conclusion , combined with the concerns of Lewis’s other conduct, convinced Arnold to terminate Lewis’s employment. Lowe’s officially terminated Lewis’s employment on September 3, 200 9. Lewis challenges the veracity of the claims that Lowe’s terminated his employment for spreading rumors, for asking Johnson’s administrative assistant to investigate the alleged improprieties of co

- workers, and for his alleged administration of unauth orized discounts or promotions in his district. Lewis brought suit against Lowe’s for terminating him in retaliation for his August 19, 2009 email about the altercation, which he characterizes as a complaint of sexual harassment.
II. STANDARD OF REVIEW We review a grant of traditional summary judgment de novo. State v. Ninety Thousand Two Hundred Thirty

- Five Dollars & No Cents i n United States Currency ($90,235) , 390 S.W.3d 289, 292 (Tex. 2013); Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence in favor of the non

- movant, and we indulge every reasonable inference and resolve any doubts in the non

- movant’s favor. Valence Operating , 164 S.W.3d at 661; Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 1 50, 157 (Tex. 2004). When, as here, the trial court’s order does not specify the grounds on which it was granted, we affirm the order if any of the asserted grounds are meritorious. $ 90,235 , 390 S.W.3d at 292; Joe , 145 S.W.3d at 157. The party moving fo r traditional summary judgment has the burden to prove there is no genuine issue of5

material fact and it is entitled to judgment as a matter of law. T EX

. R. C IV

. P . 166a(c); $ 90,235 , 390 S.W.3d at 292; Joe , 145 S.W.3d at 157.
III. PROTECTED ACTIVITY Employment

- discrimination cases employ a unique burden

- shifting analysis: first, the employee must prove his prima facie case, which entitles him to a presumption of discrimination; then the burden shifts to the employer to present evidence of a legitimat e, nondiscriminatory reason for its action; once the employer has articulated such reason, the burden shifts back to the plaintiff to prove that the reason is merely a pretext for discrimination. Tex. Dep’t of Criminal Justice v. Cooke , 149 S.W.3d 700, 70 5 (Tex. App.

— Austin 2004, no pet.); see Tex. Dep’t of Human Servs. of Tex. v. Hinds , 904 S.W.2d 629, 636 (Tex. 1995); Romo v. Tex. Dep’t of Transp ., 48 S.W.3d 265, 270 (Tex. App.

— San Antonio, 2001, no pet.); see also Wal

- Mart Stores, Inc. v. Canchola , 121 S.W.3d 735, 739 (Tex. 2003) (discussing Texas’s adoption of the federal burden

- shifting analysis for TCHRA employment

- discrimination cases that have not been tried on the merits); M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 24 (Tex. 2000) (per curiam) (same). To establish a prima facie case of retaliatory discharge under the TCHRA, a plaintiff must show: (1) the plaintiff engaged in a protected activity; (2) an adverse employment action occurred; and (3) there was a causal connection betw een participation in the protected activity and the adverse employment decision. See Wal

- Mart Stores, Inc. v. Lane , 31 S.W.3d 282, 295 (Tex. App.

— C orpus Christi 2000, pet. denied ); see also Cox & Smith Inc. v. Cook , 974 S.W.2d 217, 222

– 24 (Tex. App.

— San Antonio 1998, pet. denied). By his first issue, Lewis contends the evidence raises a genuine issue of6

material fact on whether he engaged in prot ected activity by making a good

- faith report of conduct he reasonably believed to be sexual harassment.
A. Applicable Law Opposing an employer’s discriminatory practice is protected activity under the TCHRA. T EX

. L AB

. C ODE A NN . § 21.055(1) (West, Westlaw through 2013 3d C.S.); Cox & Smith , 974 S.W.2d at 223

– 24. “The discriminatory practices made unlawful under the [TCHRA] include adverse employment decisions based on race, color, disability, religion, sex, national origin, or age.” City of Waco v. Lopez , 259 S.W.3d 147, 151 (Tex. 2008);

see T EX

. L AB

. C ODE A NN . § 21.051 (West, Westlaw through 2013 3d C.S.). “Sexual harassment is one form of sex discrimination that is prohibited . . . .” City of San Antonio v. Cancel , 261 S.W.3d 778, 783 (Tex. App.

— San Antonio 2008, pet. denied); see Waffle House, Inc. v. William s , 313 S.W.3d 796, 804 (Tex. 2010) (citations omitted). “There are two general types of sexual harassment: quid pro quo and hostile work environment.” Williams , 313 S.W.3d at 804 (citing Hoffman

- La Roche Inc. v. Zeltwanger , 144 S.W.3d 438, 445 n.5 (Tex. 2004)). To establish the employee opposed a discriminatory practice, the employee must demonstrate he reported an activity in good faith and reasonably believed the employer violated the law. Cox & Smith , 974 S.W.2d at 224. To avoid chilling the legitimate assertion of employee rights, courts do not require that an employee prove the actual discrimination ; instead, to establish a prima facie case, a plaintiff need only show he had a reasonable belief that the employer engaged in unlaw ful employment practices. S ee Payne v. McLemore’s Wholesale & Retail Stores , 654 F.2d 1130, 1137

– 40 (5th Cir.7

1981) ; 1 Lopez

, 259 S.W.3d at 151; Cox & Smith , 974 S.W.2d at 224. “Reasonable belief” has both subjective and objective components; “a plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer engaged in unlawful employment practices, but also that his belief was objectively re asonable in light of the facts and record presented.” Cox & Smith , 974 S.W.2d at 225

– 26 (quoting Little v. United Techs., Carrier Transicold Div ., 103 F.3d 956, 960 (11th Cir. 1997 )). “ ‘S ubjective beliefs of discrimination alone are insufficient to estab lish a prima facie case. ’ ” Romo , 48 S.W.3d at 270 (quoting Farrington v. Sysco Food Servs., Inc ., 865 S.W.2d 247, 251 (Tex. App.

— Houston [1st Dist.] 1993, writ denied)); see M.D. Anderson , 28 S.W.3d at 25. In a retaliat ion case, the plaintiff empl oyee must, in addition to showing a reasonable belief that the employer engaged in unlawful employment practices, show the plaintiff reported the challenged activity to the employer. Cox & Smith , 974 S.W.2d at 224. The report must have complained of some sort of discrimination covered by the TCHRA. Spinks v. Trugreen Landcare, L.L.C ., 322 F.Supp.2d 784, 796 (S.D. Tex. 2004) (citing Azubuike v. Fiesta Mart , 970 S.W.2d 60, 65 (Tex. App.

— Hous ton [ 14th Dist.] 1998, no pet.) ); see County of Travis ex. rel. Hamilton v. Manion , No. 03

- 11

- 00533

- CV, 2012 WL 1839399, at *8 (Tex. App.

— Austin May 17, 2012, no pet.) (mem. op.); Martinez v. Wilson County

, No. 04

- 09

- 00233

- CV, 2010 WL 114407, at *3 (Tex. App.

— S an Antonio

1 “‘Because our state statute tracks the federal counterpart in title VII of chapte r 42 of the United States Code, we may consider analogous federal case law in the interpretation and application of our Texas statute.’” Romo v. Tex. Dep’t of Transp ., 48 S. W.3d 265, 269

– 70 (Tex. App.

— San Antonio 2001, no pet.) (quoting Graves v. Komet , 982 S.W.2d 551, 554 (Tex. App.

— San Antonio 1998, no pet.)) ; see M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 24 (Tex. 2000)

.8

Jan. 13, 2010, no pet.) (mem. op.). The report need not contain the specific legal terms; as noted by the Seventh Circuit: There is no legal mandate that an employee use a specific term “sexual harassment” in order to inform his or her employer about a harasser in the workplace. Some employees may not be conversant or comfortable with the term and we should not place a language requirement on an employee when he or she is already presumably facing a difficult situation. Gentry v. Export Packaging Co ., 238 F.3d 842, 849 (7th Cir. 2001) . Complaining about behavior that alerts the employer about potential harassment is sufficient. Id

. The report must, however, contain sufficient description to at least alert an employer of what discriminatory practice the employee reasonably believes occurred; “[a] vague charge of discrimination will not invoke the protection under the statute.” Spinks , 322 F.Supp.2d at 797; Manion , 2012 WL 1839399, at *8; Martinez , 2010 WL 114407, at

* 3. “Although an employee need not use . . . magic words,” the employee must “at least say something to indicate ” what alleged discriminatory conduct is at issue. Sitar v. India Dep’t of Transp ., 344 F.3d 720, 727 (7th Cir. 2003). “An employee can honestly believe [he or] she is the object of discrimination, but if [he or] she never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate w hen it is unaware of any complaints.” Id

. (citations omitted); see Brown v. United Parcel Serv., Inc. , 406 F. App’x 837, 840 (5th Cir. 2010) (per curiam) (“Magic words are not required, but protected opposition must at least alert an employer to an employ ee’s reasonable belief that unlawful discrimination is at issue.”); Harris

- Childs v. Medco Health Solutions, Inc ., 169 F. App’x 913, 916 (5th Cir. 2006) (per curiam) (holding plaintiff failed to establish a prima9

facie case of retaliation because, although the plaintiff complained of “unfair treatment,” the plaintiff’s complaint failed to “put the employer on notice” of discriminatory conduct).
B. Discussion Reporting a physical altercation that is unprompted by proscribed discriminatory practices is not a protected activity under the TCHRA, whereas reporting sexual harassment is a protected activity under the TCHRA

. See Williams , 313 S.W.3d at 804; Cancel , 261 S.W.3d at 783. At issue under the protected

- activity element in this case is whether Lewis reasonably believed he was reporting sexual harassment. In his August 19, 2009 email , Lewis did not mention sexual harassment, and, more importantly, his general characterization of the incident with Jarvis, consistent with the other em ployees’ characterizations, was that it was a mere p hysical altercation. Assuming that Lewis subjectively believed he was reporting sexual harassment, there is still a “reasonable belief” requirement that the employee’s subjective belief be objectively

re asonable in light of the facts and record presented. Cox & Smith , 974 S.W.2d at 225

– 26; see Romo , 48 S.W.3d at 270 (“Subjective beliefs of discrimination alone are insufficient to establish a prima facie case.”)

. 2
Lewis insists his belief was objectively reasonable because Lowe’s policy against sexual harassment defined sexual harassment to include any “[t]ouching or other physical contact with an individual that is not welcomed.” That definition appears on a list with ten other “kind s of behavior” that the Human Resources Management Guide for Lowe’s

2 In his deposition testimony, Lewis testified that he subjectively believed Jarvis sexually harassed him. Although this testimony may be some evidence of Lewis’s subjective belief, it does not show that it was objectively reasonable in light of the facts and record presented.10

stated “may be consid ered forms of sexual harassment

. ” The guide instructs that the list is not exhaustive, and it proscribes “ [a]ll ty pes of offensive, hostile and intimidating behavior . . . .” Lewis notes that he was trained under the Lowe’s policy. We are unpersuaded by Lewis’s argument

. The evidence shows the altercation between Lewis and Jarvis was a physical altercation

. We h old that Lewis would not be objectively reasonable in believing that the fight was sexual harassment simply because Lowe’s anti

- sexual

- harassment policy contained broad sentences proscribing unwelcome physical contact. In context, these sentences are surr ounded by descriptions of sexual conduct. 3 Neither do we believe Lewis’s August 19, 2009 email, which Johnson and

3 The reli ed

- on sentences appear in the following excerpt from Lowe’s Human Resources Management Guide, which discusses sexual harassment in full as follows: Company policy strictly prohibits sexual harassment of any kind. Sexual harassment may include any con duct of a sexual nature that is not welcome and makes a reasonable person feel that the work environment is intimidating, offensive or hostile. Sexual harassment may also include comments, threats or actions that display hostility toward a person in the w orkplace because of their gender. The following kinds of behavior may be considered forms of sexual harassment. These types of conduct are prohibited under this policy.
1. Requests that an employee agree to sexual advances as a basis for making employ ment decisions. For example, “If you don’t go out with me, I’ll fire you” or “If you go out with me, I’ll give you that raise you have been seeking”. 2. Other advances or propositions of a sexual nature. 3. Unwelcome sexual flirtations. 4. Graphic sexual statements about an individual’s body. 5. Using sexual degrading words to describe an individual. 6. Gestures of an obscene or sexually suggestive nature. 7. Humor or jokes of a sexual nature. 8. Posters, pictures, cartoons, toys or objects of a sexual nature. 9. Leering or staring that is offensive. 10. Touching or other physical contact with an individual that is not welcomed. 11. Hostile comments toward employees in the workplace because of their gender. For example, “A woman’s pl ace is in the home”. This list is not intended to be exclusive or all

- inclusive. All types of offensive, hostile and intimidating behavior are prohibited by this policy.11

Gillespie requested in investigating the altercation , provided notice to Lowe’s that Lewis was making a sexual

- harassment complaint. See Sitar , 344 F.3d at 727; Spinks , 322 F.Supp.2d at 797; Manion , 2012 WL 1839399, at *8; Martinez , 2010 WL 114407, at *3. On a separate note , a report on which a retaliatory discharge claim is premised must complain of some sort of discrimination covered by the TCHRA. See Spinks , 322 F.Supp.2d at 796; see also Manion , 2012 WL 1839399, at *8; Martinez , 2010 WL 114407, at *3. The discrimination covered by the TCHRA is statutorily defined. S ee T EX

. L AB

. C ODE A NN . § 21.05; Lopez , 259 S.W.3d at 151

. We decline Lewis’s implicit invitation to allow a company ’s policies to expand the coverage of the TCHRA beyond the scope express ly delineated by the Legislature. Because the evidence shows that Lewis would not be objectively reasonable in believing the physical altercation was sexual harassment and because the complained

of altercation is not the sort of discrimination covered by the TCHRA, Lewis failed to raise a genuine issue of material fact t hat he engaged in protected activity. We overrule appellant’s first issue. By failing to establish he engaged in protected activity, Lewis failed to establish a prima facie case of retaliatory discharge under the TCHRA. See Lane , 31 S.W.3d at 295; Cox & Smith , 974 S.W.2d at 223 . Therefore, we need not consider Lewis’s second and third issues. 4 See Lane , 31 S.W.3d at 295; Cox & Smith , 974 S.W.2d at 223.

4 See T EX

. R. A PP

. P. 47.1

.12 IV. CONCLUSION We affirm the trial court’s order granting summary judgment.

GREGORY T. PERKES Justice Delivered and filed the 26 th day of June , 201 4

.