by Michael Fox
A former Baylor employee complained that his termination was because he had opposed gender discrimination against one of his colleagues. Following a 10 day trial the court submitted a retaliation question asking only if his opposition to gender discrimination had been a motivating factor in his termination. The jury answered "no". He appealed arguing that the court should also have submitted another element, that his termination was because he had "testified, assisted or participated in any manner in an investigation, proceeding or hearing." Although he had not done so, he argued that Texas should recognize a theory of "perceived" participation as recognized in Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3rd Cir.), cert. denied (2002). Under that theory, if the employer terminated him in part because it perceived" he had participated that would be illegal under the TCHRA. In Salay v. Baylor University (Tx. App. - Waco 7/23/03) the Court of Appeals wisely chose not to adopt that rule, noting no other Texas court had done so.
Thanks to a Texas Lawyer email for picking this case up. While I routinely check the Texas Courts of Appeal, the Waco court is the only one that does not regularly post its decisions on its website.