Texas Supreme Court: Barroom generalities fall short in retaliation claim

Retaliation claims pose considerable danger to Texas employers. Why? Because of how our brains are wired. Jurors innately believe an employee who complains about working conditions will be punished for doing so. Sometimes an employer’s best bet is to defeat the claim before it gets to a jury.

That can be done by arguing the employee never engaged in what’s called “protected activity”—that is, the employee raised concerns about discrimination in the workplace and thus is protected from retaliation. No protected activity means no retaliation claim. It goes poof. The claim can also go poof if a “but for” standard of causation is applied, which is what happened in this case.

Relationship drills dry hole

Cathryn Davis went to work for Apache Corporation, an oil and gas exploration company in Houston, in 2006 as a paralegal in the legal department. Things went fine until they did not. There was a dispute over her work hours and when she had to come in and when she could take off. She wanted the schedule to be her way, not Apache’s way.

Quite a few e-mails were exchanged. Overtime was worked without approval. HR became involved. In Apache’s view, Davis engaged in insubordination and her boss was told she should be fired.

Davis’ boss hesitated, which allowed a window of opportunity for her to send him a really long e-mail. The e-mail triggered a chain of events leading to her termination and the retaliation lawsuit. The question was whether the e-mail contained protected activity. Here is a sample: