SOUTHWESTERN BELL TELEPHONE AT v. LAKECIOUS EDWARDS (2011)

MEMORANDUM OPINION

Opinion By Justice Bridges

Appellant/Cross–Appellee Southwestern Bell Telephone, L.P. d/b/a AT & T (“AT & T”) appeals from a jury's verdict in favor of Appellee/Cross–Appellant Lakecious Edwards.   Edwards appeals from the trial court's decision to partially grant AT & T's motion for judgment notwithstanding the verdict.   We affirm the trial court's decision to grant AT & T's motion for JNOV with regard to the retaliation and harassment/hostile work environment claims and reverse and render judgment in favor of AT & T with regard to the race discrimination claim.

Background

This is an employment discrimination case.   Beginning in 2000, Edwards, an African–American woman, worked at AT & T's Arlington call center as a customer service representative in the Emerging Products Center (“EPC”).   Customer service representatives reported to first-line managers and were eligible to receive sales commissions and prizes based on their sales volume.   Backfills, like service representatives, handled incoming calls, but their primary responsibility was to handle difficult or angry customers.   Backfills were ineligible for commissions or prizes, but were compensated with a base salary 10% larger than that earned by service representatives.   Backfills reported to the administrative manager, who was also a first-line manager.

First-line managers made up the lowest level of management at AT & T, supervising both service representatives and backfills.   The call center was run by a second-line manager, who in turn reported to a third-line manager with responsibility for a number of call centers within a region.

The EPC group in Arlington was facing difficulties with low sales and employee attendance figures.   In early 2006, Debra Hallum, a Caucasian female, was assigned to the group as a second-line manager.   Edwards, as a union steward, acted as a liaison between her fellow employees and AT & T management and thus had regular contact with Hallum.

The First Complaint

In August of 2006, Edwards lodged a complaint through her union related to a backfill position she felt should have been offered to her.   Edwards alleged that when a backfill position opened in June, she was approached by Hallum.   According to Edwards, Hallum told her to turn down the backfill position and that, if she reported the conversation, Hallum would deny it took place.

The Second Complaint

In September of 2006, Edwards filed an internal complaint with AT & T's human resources department by calling a 24–hour hotline established by AT & T. In addition to the backfill complaint detailed in her union grievance, Edwards complained that Hallum refused to allow the group to celebrate Black History Month in 2006 in the same way they had in prior years.

The Third Complaint

In October of 2006, Edwards filed an external EEOC complaint.   The complaint included the prior allegations regarding the backfill position and Black History Month.   The October complaint also added that she had been bypassed for promotion to first-line management in favor of two less qualified white employees.

The Fourth Complaint

In November of 2006, Edwards filed another EEOC complaint in which she claimed she had been removed from the backfill position in retaliation for filing an EEOC discrimination complaint.

The Lawsuit

In May of 2007, Edwards sued AT & T, seeking damages for employment discrimination and retaliation.   About a week before trial began, Edwards amended her petition and added a claim for hostile work environment.   All three claims were tried to a jury.   The jury found in favor of Edwards and awarded $411,339 in damages.

The trial court granted in part AT & T's motion for judgment notwithstanding the verdict and disregarded the jury's findings of retaliation and hostile work environment.   The trial court rendered judgment for Edwards on her race discrimination claim, awarding:  (1) $13,175 in back pay;  (2) $100,000 in past compensatory damages for emotional pain and suffering and other non-economic damages;  (3) $16,053 in trial attorneys' fees;  and (4) appellate attorneys' fees, costs, and pre-judgment interest.

Both parties appealed the trial court's judgment and, on joint motion, this court realigned the parties to reflect AT & T as appellant/cross-appellee and Edwards as appellee/cross-appellant.

Analysis

AT & T'S APPEAL

AT & T raises ten issues for this court's consideration.   Because the first two issues raised by AT & T are dispositive, we only address those issues in our opinion.  Tex.R.App. P. 47.1.

First–Line Management Position

In its first issue, AT & T challenges the legal and factual sufficiency of the evidence to support the jury's finding that race was a motivating factor in AT & T's decision not to promote Edwards to a first-line management position.   Edwards alleged the improper promotion of three fellow employees (Thomason, Plowman, and Henderson) instead of her constituted race discrimination.

When appellant challenges both the legal and factual sufficiency of the evidence, we should first review the legal sufficiency challenge.  Glover v. Tex. Gen. Indem.   Co., 619 S.W.2d 400, 401 (Tex.1981).   We will sustain a legal sufficiency or “no-evidence” challenge if the record shows one of the following:  (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.  City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005).  “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”  Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004).   In conducting a legal sufficiency review, a court must consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it, and “[a] reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement.”  City of Keller, 168 S.W.3d at 822.

However, a fact finder may not, from meager circumstantial evidence, reasonably infer an ultimate fact, none more probable than another.   Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997).   Moreover, “[e]ven though the evidence is viewed in the light most favorable to the verdict, it cannot be considered in isolated bits and pieces divorced from its surroundings;  it must be viewed in its proper context with other evidence.”   AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex.2008) (citing City of Keller, 168 S.W.3d at 827).  “[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.”  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

Edwards brought her race discrimination suit under the Texas Commission on Human Rights Act (the “Act”).   Under the Act, an employer may not discriminate against or discharge an employee based on “race, color, disability, religion, sex, national origin, or age.”  Tex. Lab.Code Ann. § 21.051 (West 2006).   “By adopting the Act, the Legislature intended to correlate state law with federal law in employment discrimination cases.”  AutoZone, Inc., 272 S.W.3d at 592 (citing Ysleta Indep.   Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.2005));  Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003).   Therefore, we consider both federal and state law in interpreting the Act's provisions.  Canchola, 121 S.W.3d at 739;  Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.2001).   When a discrimination case has been fully tried on the merits, as here, we inquire whether the evidence is legally sufficient to support the jury's ultimate finding.   See Canchola, 121 S.W.3d at 739.   At trial, it was Edwards's burden to prove that race discrimination was a motivating factor in AT & T's decision not to promote Edwards to a first-line management position.   See id.

Edwards complained at trial that AT & T bypassed her for promotion to first-line management in favor of less-qualified employees.   AT & T, on the other hand, argued it selected the most qualified person for the job.   Edwards had two methods available to her to prove that AT & T's proffered reason for failing to promote her was a pretext for racial discrimination:  (1) AT & T's reasons for not promoting her were false or “unworthy of credence” or (2) she was “clearly better qualified” than the person selected for the position.   Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412 (5th Cir.2007).

We first examine whether Edwards was “clearly better qualified” than the people selected for the position.   See id.   It is not enough for Edwards to show she was qualified for the first-line management position, but she must have established that she was “clearly better qualified” than those actually chosen for the position.   See E.E.O.C. v. Tex. Instruments, Inc., 100 F.3d 1173, 1184 (5th Cir.1996);  Kennedy v. Tex. Dep't of Protective & Regulatory Servs., No. 03–04–00608–CV, 2005 WL 3499442, at *6 (Tex.App.-Austin Dec. 22, 2005, no pet.).   The “clearly better qualified” standard is a very high burden that required Edwards to show that “no reasonable person ․ could have chosen the candidate selected over [her].”   See Kennedy, 2005 WL 3499442, at *6 (citing Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir.2001).   The unfairness of the employer's decision must be “so apparent as to jump off the record and ‘slap [the court] in the face.’ ”   See Kennedy, 2005 WL 3499442, at *6.

We first examine Edwards's allegation of her superior qualifications over Thomason and Plowman.   When viewing the record in its entirety, we can find no evidence that Edwards was “clearly better qualified” than either Thomason or Plowman, the two employees promoted to first-line management in August 2006.   See Burrell, 482 F.3d at 412 (“clearly better qualified” standard);  AutoZone, 272 S.W.3d at 592 (requirement to view evidence in context).   In her brief, appellant contends Hallum “without a hiring panel interview, unilaterally hired” Thomason and Plowman, both Caucasian women.

In support of her argument that she was better qualified for the first-line management position, Edwards emphasized her sales record in the quarter preceding the first-line management interview.   However, Edwards admitted at trial that “sales was not the only qualification for the job.”   Further, Hallum testified that sales results were not the only factor she considered and “just because you're good at sales does not make you the right manager candidate.”   However, Hallum did testify that, in addition to Edwards's sales results, she was aware of Plowman and Thomason's sales results at the time she made the recommendation to promote them to first-line manager.

Hallum also testified that Plowman had prior management experience and that both Plowman and Thomason were recommended by their managers.   There is no evidence that Edwards had such prior experience.   Hallum testified that, during her interview, Edwards admitted she needed to work on her leadership skills and learn how to use her aggressiveness, including her emotions, in a positive way.

In addition, Tresa Gray, a manager at AT & T who had influence on the hiring of first-line managers, testified that she did not believe Edwards was more qualified than Plowman.   Gray explained:

[Plowman] had been on [her] team for a short period ․ And she had a very good sales presentation on the phone, and so I had that impression from her.   [Plowman] also took constructive criticism very well.   And she was a team player and she was a leader ․, helped to keep the sales going, get the balloons to the team when people sold, things like that.   So I thought she came off as a positive leader in our center.

Gray further testified she believed Thomason was more qualified than Edwards.   Gray stated:

[Thomason] had been on my team on the sixth floor.   She was a revenue generator for the company.   She always ․ was, you know, top ten, top four, top five.   And that's what we were trying to create in the EPC environment of a sales revenue generating, you know, center.   And she is very good at sales.

Edwards further contends that she was better qualified than the others because she had more seniority.   However, the first-line management requirement was one year with AT & T. Edwards does not dispute Thomason or Plowman had at least one year of experience with AT & T at the time of their promotion.

In her brief, Edwards also cites her better attendance record as proof she was more qualified for the first-line management position.   Trudy Benjamin, a former first-line manager, testified to Edwards's “really good attendance.”   Edwards argues she was better qualified than Plowman because Plowman was placed on discipline due to her attendance record.   Although we agree the record includes a document that indicates Plowman was disciplined for attendance issues in July of 2006, Hallum testified she was not aware of any discipline measures at the time she interviewed Plowman and recommended her for the job.   In addition, the record also demonstrates that the final status of Plowman's discipline was unclear since she was in the midst of union and family leave grievances, which could have reversed the disciplinary action.   Furthermore, Edwards does not cite us to any evidence regarding Thomason's attendance, and we are not required to search a voluminous record for evidence to support her argument.   See Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref'd n.r.e.).

Finally, the notes and testimony regarding the interviews themselves, demonstrate that members of the interview panel considered Edwards's answers to be too fast, rambling, off-point, emotional, and overly aggressive.   In contrast, Thomason and Plowman's answers were described as poised, confident, and successful.   See Alvarado v. Tex. Rangers, 492 F.3d 605, 616 (5th Cir.2007) (noting that “a subjective assessment of the candidate's performance in an interview may serve as a legitimate, nondiscriminatory reason” for non-selection.)

After reviewing the evidence in its entirety, we conclude Edwards failed to establish she was “clearly better qualified” than those actually chosen for the position in August of 2006.   See Tex. Instruments, 100 F.3d at 1184.

We next turn to whether AT & T's reason for not promoting Edwards was false or “unworthy of credence.”  See Burrell, 482 F.3d at 412.   An employer's explanation is false or unworthy of credence if it is not the real reason for the employment action.  Id. Again, AT & T argued that, on both occasions, it selected the most qualified person for the job.   Edwards, on the other hand, has argued AT & T's reason is pretext since Plowman had disciplinary actions on her record at the time of her promotion and that Plowman and Thomason were promoted without a second-round interview.

As we have previously noted, the final status of Plowman's discipline was unclear at the time of the interview and her promotion.   Further, Hallum testified that, at that time, she was unaware of any discipline against Plowman and, therefore, Edwards's argument fails.   See Kennedy, 2005 WL 3499442, at *6 (“[E]ven incorrect beliefs concerning an employee's performance or qualifications constitute legitimate, non-discriminatory reasons.”).

In addition, there is no evidence in the record before us that AT & T policy required a second round of interviews.   Instead, the record shows Hallum was the first manager in Arlington to hold open interviews for all service representatives who were interested.   Even Edwards testified she was shocked because “in the past, ․ we would never get an e-mail going out to the office stating, you know, that there would be an opportunity for management.”   Hallum explained it was her idea to establish the second-tier interviews as a way to obtain feedback from the representatives' direct supervisors since she was new and unfamiliar with their work.   Further, the evidence demonstrates Hallum consulted with her team of managers prior to making the promotion decisions for both Thomason and Plowman.   We conclude that Hallum's failure to conduct a second-round interview prior to the promotion of Thomason and Plowman did not establish that AT & T's reason for bypassing Edwards was false.  See Burrell, 482 F.3d at 412.

Edwards next argues that Hallum's “hostility to Black History Month” was further evidence of AT & T's discrimination with regard to the front-line management position when she was “denied the celebration of Black History Month.”   However, the record shows Edwards's department was given permission to and did hold a potluck lunch commemorating Black History Month on company property.   The record shows Hallum had consulted with the human resources department (prior to granting permission for the potluck), which expressed concern that the celebration of one group would require celebration of all groups.   Although she allowed the potluck, Hallum did not permit the use of company time or company resources for the celebration.   We conclude the denial of company time and resources for a personal celebration did not establish that AT & T's reason for bypassing Edwards was false.  See Burrell, 482 F.3d at 412.

Because we have determined that:  (1) Edwards was not “clearly better qualified” than Thomason and Plowman and (2) AT & T's reason was not false, we conclude AT & T's reason for bypassing Edwards was not a pretext for racial discrimination.   See id.   We conclude the cumulative record fails to provide more than an scintilla of evidence that race was a motivating factor in AT & T's decision to promote Thomason and Plowman, and not to promote Edwards, to a first-line management position.   See City of Keller, 168 S.W.3d at 810;  see also Tex. Lab.Code Ann. § 21.061 (West 2006) (“In the absence of other evidence of an unlawful employment practice, evidence of the employment of one person in place of another is not sufficient to establish an unlawful employment practice.”).

We next turn to Edwards's argument with regard to Henderson, a fellow employee promoted to first-line manager in July of 2006.   Pursuant to section 21.202 of the labor code, “[a] complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.”  Tex. Lab.Code Ann. § 21.202(a) (West 2006).   This time requirement is mandatory and jurisdictional.   Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex.1996) (per curiam).   The failure to timely file a complaint with the commission deprives the court of subject matter jurisdiction.  Czerwinski v. Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 112 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).

The record before us is devoid of a complaint filed with the commission with regard to the July 2006 promotion.   Instead, the only mention of the front-line management position in both commission complaints references the August 2006 failure to promote.   Discrete discriminatory acts, such as failure to promote, are not actionable if time barred, even when they are related to acts alleged in timely filed charges.   See Tex. Southern Univ. v. Rodriguez, No. 14–10–01079–CV, 2011 WL 2150238, at *2 (Tex.App.-Houston [14th Dist.] June 2, 2011, no pet.) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)).   Therefore, we are without jurisdiction to consider Edwards's claim that race was a motivating factor in AT & T's decision to promote Henderson over her to a first-line management position.   See id.

Having determined that:  (1) Edwards failed to provide more than an scintilla of evidence that race was a motivating factor in AT & T's decision to promote Thomason and Plowman, and (2) we are without jurisdiction to consider Edwards's claim that race was a motivating factor in AT & T's decision to promote Henderson, we sustain AT & T's first issue.   See id.;   see also City of Keller, 168 S.W.3d at 810.

Backfill Position

In its second issue, AT & T contends the evidence was legally and factually insufficient to support the jury's finding that race was a motivating factor in AT & T's failure to offer the backfill position to Edwards.   Again, we review AT & T's legal sufficiency challenge first.  Glover, 619 S.W.2d at 401.

In her brief, Edwards alleges “racial discrimination was a motivating factor in [her] initially being denied the backfill position and being tricked out of it once she acquired it later.”   We discuss her allegations separately and first turn to the failure to initially promote Edwards to the backfill position.   The reason AT & T gave for initially denying Edwards the backfill position was that Hallum believed Edwards did not want the position.   Again, Edwards had two methods available to her to prove that AT & T's proffered reason for failing to promote her was a pretext for racial discrimination:  (1) AT & T's reasons for not promoting her was false or “unworthy of credence” or (2) she was “clearly better qualified” than the person selected for the position.  Burrell, 482 F.3d at 412.

Edwards testified that when a backfill position opened in June of 2006, she was approached by Hallum.   According to Edwards, Hallum told her to turn down the backfill position and that, if Edwards reported the conversation, Hallum would deny it ever took place.   Hallum, on the other hand, testified that she approached Edwards and others to gauge their interest in the backfill position.   Hallum stated Edwards told her she was not interested in the backfill position and Edwards “proceeded to tell [her that Edwards] didn't want the other service reps to know that [Edwards] didn't want it because [Edwards] was their union steward.   And [Hallum] commented, [t]hen we never had this conversation, about [Edwards's] union comment about not wanting the reps to know.”   Hallum then related that Edwards was not interested in the backfill position to the administrative manager responsible for filling the position.

Edwards then filed a union grievance, alleging she was not offered the backfill position because of her race.   Edwards testified that in August of 2006, Hallum told her that “[you] told me you didn't want the position.   If you want it, you can have it.”   By October of 2006, Edwards went to the vice-president of the union and “escalated this because it ha[d] not been resolved.”   In an October 2006 meeting with Lynn Lehew, Hallum's supervisor, Lehew heard both sides of the story.   Lehew testified that she “felt there was probably some misunderstanding or something.”   So, Lehew decided to remove the person previously named to the backfill position and replaced her with Edwards.

We conclude that Edwards did not establish that AT & T's reason for initially bypassing Edwards for the backfill position was false.  See Burrell, 482 F.3d at 412.   Even if the jury chose to believe Edwards and not Hallum, her statements do not satisfy her burden of proof because the evidence fails to show “that discrimination was the real reason” Edwards was initially denied the backfill position.  Tex. Instruments, 100 F.3d at 1187;  Canchola, 121 S.W.3d at 740 (the burden is on the employee to show the reason proffered was false and that discrimination was the real reason).

Further, the evidence demonstrates that once AT & T became aware Edwards was, in fact, interested in the backfill position, she was promoted to the position within a few months.   Therefore, the “clearly better qualified” analysis becomes moot when Edwards was offered the backfill position.  See Burrell, 482 F.3d at 412.

We, therefore, conclude the cumulative record fails to provide more than an scintilla of evidence that race was a motivating factor in AT & T's decision to initially bypass Edwards for the backfill position.   See City of Keller, 168 S.W.3d at 810.

We next address Edwards's contention that racial discrimination was a motivating factor when Edwards was “tricked” out of the backfill position once she acquired it.   In her brief, Edwards argues Hallum “ ‘tricked’ [Edwards] out of this position so she could put Vicki Hazlett (Caucasian) back into that position after Ms. Hallum was ‘forced’ to promote Lakecious Edwards.”   Edwards contends that three days after Hallum told her the backfill position had been eliminated, causing Edwards to chose another position, “the Backfill position appear[ed] out of nowhere” and Hallum informed Edwards “she [was] no longer eligible.”   Edwards contends this proves AT & T's action “was purely pretextual and that race was a motivating factor in Ms. Hallum's actions concerning the Backfill position.”   We disagree.

After Edwards started the backfill position, multiple AT & T employees, including Edwards, testified that EPC's headcount was reduced when the highest-selling group in the EPC was switched to U-verse, a different organization.   Because of the reduction in staff, the EPC group no longer needed all of its backfills and it became necessary that the most junior backfill-Edwards-be reassigned to another position.   At that time, Hallum gave Edwards, and only Edwards, an opportunity to chose whether she wanted to remain with EPC or transition to U-verse.   Anita Williams, another member of the high selling team, testified that the remainder of the team “didn't have a choice” and transferred to U-verse.   Edwards chose to transfer to U-verse.

Shortly thereafter, Lehew and Hallum were informed that the EPC group's schedule would be extended three hours, resulting in the need for an additional backfill to cover the extended hours.   Hallum testified that, at the time she gave Edwards the choice between staying with the EPC or moving to U-verse, she was unaware the EPC office hours would soon be extended.   She also testified that she did not make the decision to change the office hours, but that decision came from “way above [her].”   Lehew testified that they did not “have a lot of advanced warning that the office hours [were] going to change before the decision [was] actually made and implemented.”

An EPC customer service representative was chosen for the EPC backfill position created to cover the additional hours.   Hallum testified that Edwards, who had already transitioned to U-verse, was ineligible for the position.   Lehew testified that the backfill positions are typically offered to customer service representatives that are actually in that particular group.  “So if you have an EPC team, then you would offer the backfill positions to the EPC reps” and “there would have been no reason for Ms. Hallum to go back and ask [Edwards] if she wanted to return to the EPC to be a backfill.”

The evidence that Edwards cites, however, criticizes AT & T's decision to eliminate her backfill position and then reinstate it.   Her evidence does not, by itself, prove that her race was a motivating factor in AT & T's decision to remover her from the position and then fail to re-offer it to her once it became available again.   See Canchola, 121 S.W.3d at 740.   Edwards bore the ultimate burden to prove that AT & T discriminated against her because of her race.  Id. We conclude Edwards failed to meet that burden and that the cumulative record provides no more than a scintilla of evidence that race was a motivating factor in AT & T's decision to remove her from the backfill position and later give the backfill position to another employee.   See City of Keller, 168 S.W.3d at 810.

Having determined that the evidence was legally insufficient to support the jury's finding that race was a motivating factor in AT & T's failure to initially offer the backfill position to Edwards and in AT & T's failure to offer it to her again once it became available, we sustain AT & T's second issue.   See id.

Therefore, based on our decision to sustain AT & T's first two issues, we reverse and render judgment in favor of AT & T with regard to Edwards's race discrimination claim.   Because the first two issues are dispositive of AT & T's appeal, we do not address AT & T's remaining issues.  Tex.R.App. P. 47.1.

EDWARDS CROSS–APPEAL

Edwards raises three issues in her cross-appeal, all attacking the trial court's decision to grant a partial JNOV in favor of AT & T.

We review a JNOV under a no-evidence standard of review.   See B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex.App.-Houston [1st Dist.] 2009, pet. denied).   To determine whether there is no evidence to support the jury's finding, “we must view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary.”  Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003).   Evidence that is “so weak as to do no more than create a mere surmise,” however, is no more than a scintilla and, thus, no evidence.   Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

Retaliation

In her first issue, Edwards contends the trial court erred in granting judgment notwithstanding the verdict on her retaliation claim.   With regard to her retaliation claim, Question No. 4 of the court's charge requested the jury to answer the following:

Has [Edwards] shown by a preponderance of the evidence that but for [Edwards's] filing of grievances, an internal EEO complaint, or an EEOC complaint alleging racial discrimination, [AT & T] would not have removed [Edwards] from the Backfill position and/or forced [Edwards] to remove anti-discrimination signs?

Section 21.055 prohibits employers from retaliating against their employees for engaging in protected activities, such as filing a complaint.  Tex. Lab.Code Ann. § 21.055 (West 2006).   In an action arising under this section, Edwards was required to make a prima facie showing that:  (1) she engaged in a protected activity, (2) an adverse employment action occurred, and (3) there was a causal link between the protected activity and the adverse action.   See Gumpert v. ABF Freight Sys, Inc., 293 S.W.3d 256, 262 (Tex.App.-Dallas 2009, pet. denied).

We examine the third requirement first.   For an adverse action to be causally linked to the protected conduct, Edwards had to show that the action would not have occurred but for the protected conduct.   See id. (citing Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 806 (5th Cir.2007).   The evidence, however, fails to connect Edwards's removal from the backfill position with her protected activity.

Edwards was removed from the backfill position on October 31, 2006.   Of the three complaints made by Edwards prior to her removal on October 31, only the external EEOC complaint, filed on October 23, could have possibly led to her removal.   The other two prior complaints, her union grievance and her internal EEO complaint,¹ were lodged before she received the backfill position on October 5, 2006.   Her final EEOC complaint was filed after her removal on November 24, 2006.   While Edwards contends AT & T removed her from the backfill position in retaliation for her EEOC complaint, the evidence before us actually demonstrates she received the backfill position due to her October 23 EEOC complaint (when AT & T became aware she was, in fact, interested in the backfill position).   Edwards's subjective belief as to AT & T's motivation for the action is insufficient.  Gumpert, 293 S.W.3d at 262–63.   We, therefore, conclude there was no evidence that Edwards was removed from the backfill position in retaliation for her protected activity.   See Havner, 953 S.W.2d at 711.

The jury was also asked to determine whether there was evidence of retaliation when AT & T asked Edwards to remove anti-discrimination signs.   However, AT & T notes, and we agree, that Edwards does not raise the anti-discrimination signs argument in her opening brief.   Thus, she has waived this ground of her retaliation claim.   See Barnes v. SWS Fin. Servs., Inc., 97 S.W.3d 759, 761 n. 3 (Tex.App.-Dallas 2003, no pet.) (failure to raise an issue in the initial appellate brief constitutes waiver).   A reply brief is limited in scope to responding to matters in an appellee's brief (or, as here, cross-appellee's brief).   Tex.R.App. P. 38.3. Because AT & T did not mention the anti-discrimination signs in its principal brief, Edwards waived her complaint by failing to raise it in her initial brief.   See Sunbeam Envtl.   Servs., Inc. v. Tex. Workers' Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex.App.-Austin 2002, no pet.).²

Next, Edwards asserts that AT & T's failure to pay her for time spent on union work was another ground to support her retaliation claim.   However, the jury's verdict, the trial court's JNOV, and this Court's review of the retaliation claim is limited to the two grounds submitted in the jury charge.   See Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001) (“Because [appellants] did not object to the jury charge, we review the sufficiency of the evidence in light of the charge submitted.”).

Also, in her brief, Edwards states:  “For further questions and answers specifically dealing with retaliation, see RR 8, 94–125.”   However, this is not an argument before this court, and “[i]t is not the proper role of this Court to create arguments for an appellant-we will not do the job of the advocate.”  In re M.N.D.L.Z., No. 04–09–00389–CV, 2010 WL 1233974, at *4 (Tex.App.-San Antonio Mar. 31, 2010, no pet.) (mem.op.) (citing In re A.D.A., 287 S.W.3d 382, 390 (Tex.App.-Texarkana 2009, no pet.).

Thus, based on our review of the only remaining retaliation claim (removal from the backfill position), we conclude the trial court properly granted JNOV in favor of AT & T. See Havner, 953 S.W.2d at 711.   We overrule Edwards's first issue.

Harassment/Hostile Work Environment

In her second issue, Edwards contends the trial court erred in granting JNOV on her harassment claim, i.e. her hostile work environment claim.

The elements of a prima facie case of hostile work environment are:  (1) the employee belongs to a protected group;  (2) the employee was subjected to unwelcome harassment;  (3) the harassment complained of was based on the protected characteristic, e.g., race;  (4) the harassment complained of affected a term, condition, or privilege of employment;  and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.  Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 325 n. 14 (Tex.App.-Texarkana 2008, pet. denied) (citing Celestine, 266 F.3d at 353).   A plaintiff complaining of harassment by a supervisor need show only the first four elements.  Id.

In her brief, Edwards contends the following acts constituted unlawful harassment:  (1) denial of the celebration of Black History Month in the same manner as in past years;  (2) denial of the first-line management position;  (3) the initial denial of the backfill position;  (4) removing Edwards from the backfill position and filling that position with another employee when it later became available, (5) refusal to pay Edwards for union work time, (6) moving Edwards's desk “so that she was constantly monitored,” (7) requiring Edwards and her co-workers to attend a mandatory diversity training video, which she found offensive, and (8) one of AT & T's managers “dressed up as a stereotypical ghetto African American during the celebration of St. Patrick's day, wearing a green afro.”

The first five incidents are the same events for which Edwards claimed racial discrimination and retaliation.   The trial court observed during the hearing on AT & T's motion for directed verdict:  “My concern is that this hostile work environment claim is-is a little bit problematic․  [I]t's like you want to mix the discrimination and the hostile work environment claim and kind of mix them together.”   The trial court's concern was well-founded since “discrete acts constituting discrimination or retaliation claims must be kept conceptually distinct from hostile work environment claims.”   See Olivarez v. Univ. of Tex. at Austin, No. 03–05–00781–CV, 2009 WL 1423929, at *4 (Tex.App.-Austin May 21, 2009, no pet.) (citing Lester v. Natsios, 290 F.Supp.2d 11, 32–33 (D.D.C.2003)).   As one federal court cited by the Olivarez court recognized:

[T]he dangers of allowing standard disparate treatment claims to be converted into a contemporaneous hostile work environment claim are apparent.   Such an action would significantly blur the distinctions between both the elements that underpin each cause of action and the kinds of harm such cause of action was designed to address.

Parker v. State of Del. Dep't of Pub. Safety, 11 F.Supp.2d 467, 475 (D.Del.1998).   We, therefore, conclude the trial court properly found no evidence of the hostile work environment claim for the same events for which Edwards claimed racial discrimination and retaliation.   See Havner, 953 S.W.2d at 711, Olivarez, 2009 WL 1423929, at *4.

We next turn to Edwards's allegation that she was subject to unlawful harassment when her desk was moved “so that she was constantly monitored.”   In support of her argument, she cites us to her testimony, in which she stated:

I was forced to move my desk from where I was at to right in front of my manager's office, where they could supervise all of my activities.   And that happened on two occasions.

For harassment to affect a “term, condition, or privilege of employment,” it must be “sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.”   See Celestine, 266 F.3d at 353.   Also, the harassment complained of “must be based on race.”   See id.   The referenced testimony fails to provide evidence of harassment, affecting a term, condition, or privilege of employment and does not demonstrate that her move was based on race.   An employee's subjective belief of discrimination alone is not sufficient to warrant judicial relief.   See Auguster v. Vermillion Parish Sch. Bd., 249 F.3d 400, 403 (5th Cir.2001).   Therefore, we conclude her move amounted to no evidence of a hostile work environment.   See Havner, 953 S.W.2d at 711.

We next consider Edwards's argument that she was subject to unlawful harassment when she and her co-workers were required to attend a mandatory diversity training video, which she found offensive.   We determine whether a hostile work environment exists using a totality-of-the-circumstances test that focuses on “the frequency of the discriminatory conduct;  its severity;  whether it is physically threatening or humiliating ․ and whether it unreasonably interferes with an employee's work performance.”  Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir.2007).   The transcript of the film ³ indicates that it “has been widely used with students and teachers-by government, business, and labor organizations concerned about human relations.”   Although Edwards found the film offensive, she agreed that the lesson of the film was that “you don't judge people by the color of their skin.”   In addition, “[t]o be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so.”   See Garza v. Laredo Indep.   Sch. Dist., 309 Fed. App'x 806, 810 (5th Cir.2009) (citing Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir.1999)).   Other employees who viewed the video, including other African Americans, testified that, in its context, they did not find the diversity training video offensive.   Therefore, under the totality of the circumstances, we conclude the diversity training video provided no evidence of harassment.   See Havner, 953 S.W.2d at 711.

Finally, to support her hostile work environment claim, Edwards cites us to an incident in which one of the AT & T managers dressed up as a “stereotypical ghetto African American during the celebration of St. Patrick's Day, wearing a green afro.”   Although we agree that the manager's act may have been inappropriate, the record reflects that this was, at most, an isolated incident that was neither severe nor pervasive.   See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.”).   We conclude the conduct of the manager was not sufficiently severe to create a hostile work environment.   See Pickens v. Shell Tech. Ventures, Inc., 118 Fed. App'x 842, 849 (5th Cir.2004) (skit performed during company Christmas party in which children's faces were painted black, accompanied by racially insensitive comments from the audience, was not pervasive or abusive enough to create a hostile working environment).

Thus, based on our review of the record with regard to Edwards's hostile work environment claim, we conclude the trial court properly granted JNOV in favor of AT & T. See Havner, 953 S.W.2d at 711.   We overrule Edwards's second issue.

Damages and Fees

In her third and final issue on cross-appeal, Edwards contends that because the trial court erred in granting JNOV on Edwards's retaliation and harassment claims, “it also erred in granting judgment notwithstanding the verdict on the accompanying damage and attorney's fees questions as well.”   However, because we have already overruled Edwards's first two issues on cross-appeal, we need not address her final issue.  Tex.R.App. P. 47.1.

CONCLUSION

Based on the foregoing analysis, we:  (1) affirm the trial court's decision to grant AT & T's motion for JNOV with regard to the retaliation and harassment/hostile work environment claims and (2) reverse the trial court's judgment in favor of Edwards on her racial discrimination claim against AT & T and render judgment that Edwards takes nothing.

090606F.P05

FOOTNOTES

FN1. Edwards submitted her union grievance at a meeting on August 2, 2006 and filed her EEO complaint on September 6, 2006..  FN1. Edwards submitted her union grievance at a meeting on August 2, 2006 and filed her EEO complaint on September 6, 2006.

FN2. The trial court also noted waiver of this argument at the JNOV hearing, stating “[Edwards] pretty much conceded that the forcing her to remove any anti-discrimination sign in the workplace simply isn't something that's materially adverse to her because I didn't see that in any type of response.   So, basically, it looks to me like you've just walked away from that.”.  FN2. The trial court also noted waiver of this argument at the JNOV hearing, stating “[Edwards] pretty much conceded that the forcing her to remove any anti-discrimination sign in the workplace simply isn't something that's materially adverse to her because I didn't see that in any type of response.   So, basically, it looks to me like you've just walked away from that.”

FN3. At the beginning of the diversity training video, Brown Eyes/Blue Eyes, the film-makers featured Jane Elliott's third-grade class from 1970, in which Ms. Elliott used the color of the children's eyes to establish which group among them was “superior” for the purpose of teaching children about discrimination..  FN3. At the beginning of the diversity training video, Brown Eyes/Blue Eyes, the film-makers featured Jane Elliott's third-grade class from 1970, in which Ms. Elliott used the color of the children's eyes to establish which group among them was “superior” for the purpose of teaching children about discrimination.

DAVID L. BRIDGES JUSTICE