How to Prove Retaliation Claim In Texas ?

A plaintiff asserting a retaliation claim must establish that without his or her protected activity, the employer's prohibited conduct would not have occurred when it did. McMillon v. Texas Dept. of Ins., 963 S.W.2d 935, 940 (Tex. App.--Austin 1998, no writ). That is, the plaintiff must establish a "but for" causal nexus between the protected activity and the employer's prohibited conduct. McMillon, 963 S.W.2d at 940. The plaintiff need not establish that the protected activity was the sole cause of the employer's prohibited conduct. Id. In order to successfully assert a claim of retaliatory discharge the plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination which when established gives rise to a presumption that the employer unlawfully discriminated against the employee. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). To establish a prima facie case of retaliation a plaintiff must show that: (1) he engaged in a protected activity; (2) an adverse employment action occurred; (3) there was a causal connection between participation in the protected activity and the adverse employment decision. Graves v. Komet, 982 S.W.2d 551, 554 (Tex. App.-- San Antonio 1998, no writ); Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex. App.--Houston [14th Dist.] 1998, no writ). The burden then shifts to the defendant/employer to rebut this presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Graves, 982 S.W.2d at 554. The employer is not charged with the burden of persuading the trier of fact that it was actually motivated by the proffered reason. Burdine, 450 U.S. at 254; Graves, 982 S.W.2d 551 at 554. Rather the employer meets its burden by setting forth through admissible evidence a reason for dismissal legally sufficient to justify a judgment in its favor. Burdine, 450 U.S. at 254-55; Graves, 982 S.W.2d at 554-56. Upon the employer's articulation of a legitimate, nondiscriminatory reason for discharge the presumption raised by the prima facie case is rebutted and it drops from the case. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Graves, 982 S.W.2d at 555. At this point the plaintiff carries the burden of proving that the employer's proffered reason is a pretext for discriminatory conduct. McDonnell Douglas, 411 U.S. at 804; Graves, 982 S.W.2d at 555. A plaintiff meets this burden when he or she either directly persuades the trier of fact that "a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence." Burdine, 450 U.S. at 256; Graves, 982 S.W.2d at 555. The ultimate burden of persuading the factfinder that the employer engaged in intentionally discriminatory conduct remains at all times with the plaintiff. Burdine, 450 U.S. at 253; Graves, 982 S.W.2d at 555. Under the Anti-Retaliation Law, "a person" may not discharge or in any other manner discriminate against an employee because the employee has filed a workers' compensation claim in good faith. See TEX. LAB. CODE ANN. 451.001(1) (Vernon 1996). The remedy for retaliation includes reasonable damages resulting to the employee, reinstatement to the former position of employment, and injunctive relief. See id. 451.002--.003. To prevail on an anti-retaliation claim, the plaintiff must establish that but for the filing of the claim, the discharge would not have occurred when it did. See Continental Coffee Prod. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697 (Tex. App.--Fort Worth 1998, no pet.). As originally enacted, the adoption of the Anti-Retaliation Law did not express a clear intent to waive sovereign immunity. See Barfield, 898 S.W.2d at 293.