Back to basics: Retaliation in Texas requires protected activity

Here’s a case that presents retaliation basics in Texas. By basics, I mean what it is that you screen in looking for a way to dismiss a discrimination charge or a lawsuit.

Let’s look at a few facts

Kelli Smith worked as a package car driver for United Parcel Service (UPS), starting in September 2017. While employed, she complained about “payroll discrepancies,” including “an array of mechanical issues” that she experienced. In addition, she complained that her manager called her a “little girl” and that she heard him say she was an “angry black female.”

The comments led her to file a discrimination charge with the Equal Employment Opportunity Commission (EEOC) on June 23, 2022. Things worsened, and she was fired on September 2 because she allegedly claimed she had delivered a package that she had not.

Smith then sued for retaliation under both Title VII of the Civil Rights Act of 1964 and the Texas Commission on Human Rights Act (TCHRA). The trial court tossed the claims, and the U.S. 5th Circuit Court of Appeals (whose rulings apply to all Texas employers) said it was right in doing so.

What the law says

First, to succeed on a retaliation claim under either Title VII or the TCHRA, an employee must engage in “protected activity,” which includes “opposing any practice made an unlawful employment practice under” the law. The legal question then becomes whether the language of the employee’s complaints fell within this definition. In Smith’s case, the appeals court said not: