Jury verdict for gay employee’s retaliation claim thrown out since his report was not legally sufficient

Jury verdict for gay employee’s retaliation claim thrown out since his report was not legally sufficient

Raymond Michael Lee v. Harris County Hospital District, 01-12-00311-CV (Tex. App. – Houston [1st District], October 15, 2013).

This is an employment retaliation case of interest to employment professionals and litigators. Lee was a gay employee who became offended with several comments regarding sexual orientation which occurred at work. He became so uncomfortable that he tape recorded several conversations and used them as evidence of discrimination, retaliation, and aiding and abetting. The trial court dismissed the discrimination and aiding and abetting claims holding the Texas Labor Code does not cover sexual orientation as a protected class for discrimination.  After a trial where Lee won on his retaliation claim, the trial court granted a judgment notwithstanding the verdict dismissing Lee’s claims entirely and he appealed.

The case is of interest to HR professionals since the behavior contained within the evidence gives an indication of the type of activity which is permitted, but can cause a lawsuit such as this one. The case is of interest to litigators as it deals with the standard for obtaining a JNOV after a trial loss.

The 1st Court of Appeals held in order to show Lee opposed a discriminatory practice (i.e. engaged in a protected activity for retaliation charge), he must demonstrate a good faith belief that the employer’s underlying discriminatory practice violated the law. However, “[a] vague charge of discrimination will not invoke protection under [the TCHRA].” Thus, for a complaint filed with an employer to constitute a protected activity, “the complaint must indicate the discrimination occurred because of sex, race, national origin, or some other protected class.” A complaint of unfair treatment and harassment does not “put the employer on notice that [the employee’s] complaint was based on . . . sexual discrimination.”  Here, Lee’s complaint to his supervisors indicate only that he found the behavior offensive, not that it was discriminatory based on sex. Citing rude or offensive behavior, by itself, does not put an employer on notice of a complaint. A complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.  Lee’s did not. As a result, the trial court properly granted the JNOV and Lee’s claims properly dismissed.

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