Court of Appeals of Texas, Dallas.

COLORADO RANCHERS, INC., Appellant

v.

DELIA BELTRAN, Appellee

No. 05-25-00243-CV

|

Opinion Filed March 19, 2026

On Appeal from the County Court at Law No. 4

Dallas County, Texas

Trial Court Cause No. CC-19-06898-D

Before Justices Garcia, Jackson, and Lee

Opinion by Justice Garcia

MEMORANDUM OPINION

DENNISE GARCIA JUSTICE

*1 This is an employment discrimination case in which the jury found that the employer Colorado Ranchers, Inc. (“Colorado Ranchers”) retaliated against its employee Delia Beltran (“Beltran”). In four issues that we distill to two, Colorado Ranchers argues the evidence is legally and factually insufficient to support the jury’s retaliation finding. As discussed below, we conclude the evidence is legally insufficient to support the retaliation finding because there is no evidence that Beltran engaged in a protected activity by opposing a discriminatory practice. We reverse the trial court’s judgment and render judgment that Beltran take nothing on her claims.

I. BACKGROUND

Colorado Ranchers sells Mexican cheese products. To promote such products, Colorado Ranchers utilizes the services of product demonstrators to offer samples at Hispanic-oriented grocery stores. A product demonstrator prepares a tray of bite-sized pieces of cheese, approaches store customers, and asks, “Would you like to try a free sample of our delicious cheese?”

Beltran provided product demonstration services to Colorado Ranchers at grocery stores in the Dallas area. In October 2017, Beltran fell ill with facial paralysis and was diagnosed with Bell’s Palsy. When Beltran notified her supervisors about her Bell’s Palsy they told her to take the time she needed and come back to work once she was well.

Beltran returned to work after several months, but had problems getting paid. The problems persisted for several weeks until Beltran threatened to get a lawyer if Colorado Ranchers did not pay her.

Approximately ten weeks after Beltran returned to work, her supervisor contacted her to let her know her paycheck was ready. When Beltran picked up her check, she was informed that the owner of the company did not want her there anymore because she threatened to consult a lawyer about her pay.

Beltran claims she was discharged on March 2, 2018. Over two months later, on May 7, 2018, Beltran filed a discrimination complaint with the Texas Workforce Commission.

Beltran sued Colorado Ranchers asserting various claims under the Texas Commission on Human Rights Act (“TCHRA”), including disability discrimination, wrongful termination, unlawful retaliation, workers’ compensation discrimination, and workers’ compensation discriminatory discharge. The case was tried to a jury.

The jury charge included questions concerning disability discrimination and retaliation. Question Two asked: “Was Delia Beltran’s actual or perceived disability a motivating factor in Colorado Ranchers, Inc.’s decision to discharge Delia Beltran? The jury answered this question “No.”

Question 3 asked the jury about retaliation:

Did Colorado Ranchers discharge Delia Beltran because of Delia Beltran’s opposition to a discriminatory practice or filing a complaint?

Delia Beltran must establish that without her opposition to a discriminatory practice or filing a complaint, if any, Colorado Ranchers’ discharge, if any, would not have occurred when it did.

*2 There may be more than one cause for an employment decision. Delia Beltran need not establish that her opposition to a discriminatory practice or filing a complaint, if any, was the sole cause of Colorado Ranchers’ discharge, if any.

If you do not believe the reason Colorado Ranchers has given for discharge, you may, but are not required to, infer that Colorado Ranchers would not have discharged Delia Beltran but for her opposition to a discriminatory practice.

The jury answered “Yes” to this question and found that Beltran should recover $960 in back pay and $11,520 in past compensatory damages. The trial court rendered judgment for Beltran, awarding her back pay and compensatory damages in the amounts found by the jury, $5,148 in prejudgment interest, post-judgment interest, $95,355 in attorneys’ fees, and $5,052.20 in taxable costs of court.

Colorado Ranchers moved for “reconsideration and modification” of the judgment and for judgment notwithstanding the verdict. The trial court denied the motions. This appeal followed.

II. ANALYSIS

Colorado Ranchers argues the trial court erred by denying its motion JNOV because the evidence is legally insufficient to support the jury’s retaliation finding. A trial court may disregard a jury verdict and render a JNOV if no evidence supports the jury finding on an issue necessary to liability or if a directed verdict would have been proper. See TEX. R. CIV. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). A directed verdict is proper (1) when the evidence conclusively establishes the movant’s right to judgment or negates the opponent’s right or (2) when the evidence is insufficient to raise a material fact issue. Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). The trial court should grant a JNOV “when the evidence is conclusive and one party is entitled to recover as a matter of law or when a legal principle precludes recovery.” B & W Supply Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

We review the trial court’s ruling on a motion for JNOV under a legal-sufficiency standard. Tanner v. Nationwide Mut. Fire Ins., 289 S.W.3d 828, 830 (Tex. 2009). We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence 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 mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014).

In the present case, the issues submitted to the jury were based on alleged violations of the TCHRA. The TCHRA prohibits, among other things, age, disability, and national origin discrimination and retaliation by employers. See TEX. LAB. CODE ANN. §§ 21.051, 21.055, 21.105. The Texas Legislature enacted the TCHRA for a dual purpose: “ ‘to address the specific evil of discrimination and retaliation in the workplace,’ as well as to coordinate and conform with federal anti-discrimination and retaliation laws under Title VII.” Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 504 (Tex. 2012).¹

*3 The jury found that Colorado Ranchers did not discriminate against Beltran based on her disability. Thus, only the retaliation provisions of the TCHRA are at issue here.

The TCHRA prohibits employers from engaging in retaliatory action against an employee for opposing a discriminatory practice. See TEX. LAB. CODE ANN §§ 21.051, 055(1). To establish a violation, the employee must show that (1) she engaged in an activity protected by the TCHRA, (2) an adverse employment action occurred, and (3) there exists a causal link between the protected activity and the adverse action. Evans v. City of Hous., 246 F.3d 344, 352 (5th Cir. 2001); Gonzalez v. Champion Techs., Inc., 384 S.W.3d 462, 472 (Tex. App.––Houston [14th Dist.] 2012, no pet.). An employee engages in a protected activity when she “opposes a discriminatory practice,” “makes or files a charge,” “files a complaint,” or “testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.” TEX. LAB. CODE ANN § 21.055. Beltran did not file a formal discrimination complaint with the Texas Workforce Commission before she was discharged. Therefore, this complaint cannot support her retaliation claim. See Esparza v. Univ. of Texas at El Paso, 471 S.W.3d 903, 914 (Tex. App.—El Paso 2015, no pet.) (holding university’s actions that occurred before plaintiff filed her EEOC charge could not have been caused by the EEOC filing). The protected activity at issue here concerns “oppos[ing] a discriminatory practice.”

An employee establishes that she opposed a discriminatory practice by demonstrating that she had a good-faith, reasonable belief that the underlying discriminatory practice violated the TCHRA. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015). In addition, to constitute protected activity under the TCHRA, the employee’s conduct must alert the employer to the employee’s reasonable belief that unlawful discrimination is at issue. Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 59 (Tex. 2021); Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755,787 (Tex. 2018).

A retaliation claim focuses on the employers’ response to an employee’s protected activity, such as making a discrimination complaint. Alamo Heights, 544 S.W.3d at 763–64. The Texas Supreme Court has held that the employee’s complaints must at least “alert the employer to the employee’s reasonable belief that unlawful discrimination is at issue.” Id. at 786. Though “magic words” are not required to invoke the TCHRA’s anti-retaliation provision, complaining only of “harassment,” “hostile environment,” “discrimination,” or “bullying” is insufficient. Id. at 786–87. There must be some indication of discrimination on the basis of the protected class. See id. at 787 (concluding that plaintiff’s description of coworker’s behavior as “inappropriate,” “offensive,” “bullying,” “harassment,” “embarrassing,” “rude,” and “intimidating” did not alert employer that plaintiff thought coworker’s behavior was based on gender or otherwise amounted to sex-based discrimination). Johnson v. Capstone Logistics, LLC, No. 01-23-00221-CV, 2024 WL 5249164, at *12 (Tex. App.—Houston [1st Dist.] Dec. 31, 2024, no pet.) (mem. op) (request for time off due to high blood pressure did not indicate a concern about disability discrimination); Warrick v. Motiva Enters., L.L.C., No. 14-13-00938-CV, 2014 WL 7405645, at *8 (Tex. App.—Houston [14th Dist.] Dec. 30, 2014, no pet.) (mem. op.) (email not protected activity because it did not allege treatment was based on protected characteristic such as race or perceptions of disability); Lee v. Harris Cty. Hosp. Dist., No. 01-12-00311-CV, 2013 WL 5637049, at *6 (Tex. App.—Houston [1st Dist.] Oct. 15, 2013, pet. denied) (mem. op.) (general complaints not protected where they do not provide connection between opposed behavior and characteristic protected by Labor Code). Details or incidents not included in the complaint cannot be considered in determining whether the employee alerted the employer of a reasonable belief that discrimination occurred. See Alamo Heights, 544 S.W.3d at 788. Opposing a discriminatory practice is a protected activity regardless of the merits of the underlying discrimination claim, although “the employee must demonstrate a good-faith, reasonable belief that the underlying discriminatory practice violated the TCHRA.” Nicholas, 461 S.W.3d at 137.

*4 Beltran contends that threatening to seek the advice of an attorney about her paychecks is a protected activity opposing a discriminatory practice. We disagree.

Nothing in Title VII or the TCHRA protects such activity. Complaining about a paycheck does not implicate a discriminatory practice. Not every incident of rude or offensive behavior implicates Title VII or the TCHRA. See Lee, 2013 WL 5637049, at *5. For a complaint to constitute protected activity, “the complaint must indicate the discrimination occurred because of sex, race, national origin, or some other protected class.” Id. at *6; TEX. LAB. CODE ANN. § 21.051(1) (employer may not discriminate against or discharge employee based on race, color, disability, religion, sex, national origin, or age); see also, Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 349 (5th Cir. 2007) (opposing conduct that is not discriminatory in nature is not protected activity under Title VII).

The evidence at trial, including Beltran’s testimony, reflects that the only complaint Beltran made to her employer concerned her paychecks. She did not complain that she was not receiving a paycheck because of her disability or alert her employer that she believed the delay in receiving her checks constituted disability discrimination. And Beltran did not threaten to consult with an attorney because she believed she was being discriminated against because of her disability. Her threat was solely based on the problem with receiving her paychecks. For example, Beltran testified:

Once I started working again, I was waiting, expecting a check like the following week and it didn’t get there. I told Alberto and Rene. They said, wait another week, it’s just taking a little longer. It’s delayed a little bit. Another week went by and it didn’t come. I continued to ask. I asked for — I continued to ask and seven weeks went by and my check still wouldn’t come in. I continued asking and at the end Alberto said, look, I don’t know. I told Alberto, if they don’t pay me, I’m going to find the advice of an attorney so that he can help me.

Later, Beltran testified:

Q: So Alberto calls you and tells you to meet him at a gas station by your house. Did you end up meeting him there?

A: Yes, I went. He gave me my check. I asked him, what’s going on with my work, with my job, when am I going back to work? He said, no, no more, Mr. Gabriel does not want you there anymore because you stated that you were going to go ask for the advice of an attorney if they did not pay you.

Beltran also testified:

The reason why they said that they were not going to give me any more work is because I told Cassanova that if they didn’t pay me for the checks that I was missing that they still owe me, that I was going to get the advice of an attorney.

The parties disagree about whether the evidence establishes that Beltran believed she was discriminated against. For example, Colorado Ranchers relies on Beltran’s testimony stating, “I haven’t said I was discriminated.” Conversely, Beltran points to subsequent testimony where Beltran testified that she believed she lost her job because of her facial paralysis and that losing her job due to facial paralysis was discriminatory. Because the jury concluded that there was no disability discrimination, we evaluate this evidence only in the context of retaliation.

*5 Standing alone, Beltran’s belief about discrimination is not material to our retaliation analysis. Instead, the inquiry focuses on whether she alerted her employer in unequivocal terms that she believed unlawful discrimination had occurred or was occurring. See Alamo Heights, 544 S.W.3d at 786. Here, the record reflects that although Beltran believed she was discriminated against because of her disability, she never communicated this belief to her employer.

Beltran also relies on evidence suggesting that she was terminated because of her illness. For example, Beltran’s supervisor testified that Beltran would not have lost her job “if she hadn’t gotten sick.” The owner of Colorado Ranchers testified that Beltran “was replaced because she was not at work.” The evidence also establishes that Beltran never had problems getting paid before her illness.² While relevant to the disability claim the jury rejected and the reason for Beltran’s termination, this evidence does not establish that Beltran engaged in a protected activity by opposing a discriminatory practice.

Nonetheless, Beltran insists the evidence is sufficient to support the retaliation finding because “this is a pretext case.” For several reasons, Beltran’s argument is misplaced.

Beltran’s pretext argument is premised on the fact that the retaliation question in the jury charge included a pretext instruction that read:

If you do not believe the reason Colorado Ranchers has given for discharge, you may, but are not required to, infer that Colorado Ranchers would not have discharged Delia Beltran but for her opposition to a discriminatory practice.

A pretext instruction is based on the federal McDonnell Douglas burden-shifting framework. See Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 140 (2000).³ Texas courts apply the McDonnell Douglas framework to analyze retaliation claims under the TCHRA but the precise evidentiary elements of the prima facie case differ from discrimination cases due to the nature of the claims. Alamo Heights, 544 S.W.3d at 781–782; see also County of El Paso v. Flores, 677 S.W.3d 31, 42–43 (Tex. App.—El Paso 2023, pet. denied).⁴

*6 The three-part McDonnell Douglas burden-shifting framework enables an employee to establish discrimination with circumstantial evidence. Alamo Heights, 544 S.W.3d at 782 (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253–54 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973)). If the employee can establish a prima facie case of discrimination, a rebuttable presumption of discrimination arises, which can alone sustain a discrimination claim. Id. But the employer can defeat this presumption merely by producing evidence of a legitimate, nondiscriminatory reason for the disputed employment action. Id. Once rebutted, the presumption disappears, and an employee lacking direct evidence cannot prove a statutory violation without evidence that the employer’s stated reason is false and a pretext for discrimination. Id. In both direct and circumstantial evidence cases, the burden of persuasion remains the same. Id. Critically, Texas courts require retaliation plaintiffs to satisfy a “but-for” causation standard, which is more stringent than the mixed-motive standard applicable to discrimination claims. Democratic Schools Research Inc. v. Rock, 608 S.W.3d 290, 308 (Tex. App.—Houston [1st Dist. 2020, no pet.).

As the foregoing makes clear, pretext is only relevant to the reason for an employee’s discharge. See Mission Consol., 372 S.W.3d at 634. Pretext does not come into play unless the employee first establishes a prima facie case. See Democratic Schools, 608 S.W.3d at 308 (initially employee must meet the minimum burden of establishing a prima facie case of discrimination which entitles the employee to a presumption of discrimination); Flores, 677 S.W.3d at 42–43 (plaintiff must first create presumption of illegal discrimination or retaliation by establishing a prima facie case). Therefore, before she was entitled to a presumption of retaliation, Beltran was required to prove: (1) she engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse action. See Alamo Heights, 544 S.W.3d at 782. On this record, the evidence is insufficient to establish that Beltran engaged in a protected activity. Therefore, whether Colorado Ranchers’ reason for the discharge was pretextual is immaterial.

Moreover, we do not apply the McDonnell Douglas test in our review. Reviewing courts apply the McDonnell Douglas burden-shifting analysis in discrimination cases that have not been fully tried on the merits. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citations omitted). But once a discrimination case has been tried on the merits, reviewing courts do not utilize a burden-shifting analysis. Canchola, 121 S.W.3d at 739; Dell, Inc. v. Wise, 424 S.W.3d 100, 109 (Tex. App.—Eastland 2013, no pet.). “Instead, we inquire whether the evidence is legally sufficient to support the jury’s ultimate finding.” Canchola, 121 S.W.3d at 739 (citing Rutherford v. Harris Cnty., Tex., 197 F.3d 173, 180–81 (5th Cir. 1999)).

Here, we conclude the evidence is legally insufficient to support the jury’s retaliation finding because there is no evidence that Beltran engaged in a protected activity by opposing a discriminatory practice.

III. CONCLUSION

We sustain Colorado Ranchers legal insufficiency issue and need not address its other issues. See TEX. R. APP. P. 47.1. We reverse the trial court’s judgment and render judgment that Beltran take nothing on her claims.

Footnotes
1	We may look to relevant federal law for guidance when the relevant provisions of Title VII are analogous. See TEX. LAB. CODE ANN. § 21.001(1); AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam). The law governing discrimination and retaliation claims under Title VII and the Texas Commission on Human Rights Act (TCHRA) is largely identical. See Brewer v. Coll. of the Mainland, 441 S.W.3d 723, 729 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004); see also TEX. LAB. CODE ANN. § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).
2	Beltran also claims Colorado Ranchers believed Beltran “was a troublemaker because she made several other claims of discrimination in the past.” The record does not support this characterization. The evidence to which Beltran refers appears in a trial exhibit (Colorado Ranchers response to the discrimination complaint) includes the statement: “As antecedent has filed several demands.” There was no evidence explaining this statement or discussing the exhibit.
3	In a well-reasoned opinion, our sister court has recently criticized the use of this instruction in a discrimination case because it appeared to have “abrogated … [the] burden of presenting proof of age discrimination as a motivating factor in the termination.” Baron v. Aviation Services, Inc. v. Kitchen, 679 S.W.3d 330, 346–47 (Tex. App.—Eastland 2023, pet. denied). The Baron court further noted that the McDonnell Douglas rubric assumes that at the point where a plaintiff seeks to introduce evidence of pretext, “the plaintiff has already offered some evidence of discrimination in the form of a prima facie case.” Id. at 350. But we need not address the propriety of such an instruction here. See TEX. R. APP. P. 47.1. There was no objection to the charge and charge error has not been raised as an issue on appeal.
4	Texas courts follow the settled approach of the U.S. Supreme Court in recognizing “two alternative methods of proof” in discrimination and retaliation cases. Mission Consol. Independent. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012) (discrimination); Alamo Heights, 544 S.W.3d at 781–82 (retaliation). First, an employee can prove discriminatory or retaliatory intent by direct evidence of what the employer did and said. Mission Consol., 372 S.W.3d at 634; see Alamo Heights, 544 S.W.3d at 781–82. “Direct evidence of discrimination is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 433 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (citation omitted); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). “If an inference is required for the evidence to be probative as to the employer’s discriminatory animus in making the [adverse] employment decision, the evidence is circumstantial, not direct.” Donaldson, 495 S.W.3d at 433; Sandstad, 309 F.3d at 897–98. In the absence of direct evidence, courts apply the McDonnell Douglas burden-shifting framework. Mission Consol., 372 S.W.3d at 634 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, (1973)).