Orlando Toldson v. Denton Independent School District

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00394-CV
___________________________

ORLANDO TOLDSON, Appellant

V.

DENTON INDEPENDENT SCHOOL DISTRICT, Appellee

On Appeal from the 362nd District Court
Denton County, Texas
Trial Court No. 15-09087-362

Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Justice Womack
 MEMORANDUM OPINION

I. INTRODUCTION

Appellant Orlando Toldson sued his former employer, appellee Denton

Independent School District (DISD), alleging sexual harassment and retaliation claims

under the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code

Ann. §§ 21.051, .055. DISD moved for summary judgment, and the trial court

granted the motion, dismissing both of Toldson’s claims. Toldson appeals. In the

“Issues Presented” portion of his brief, Toldson presents a single issue challenging the

trial court’s summary judgment only as to his retaliation claim.1 We affirm.

II. BACKGROUND

Toldson worked for DISD as a paraprofessional off and on from 2009 until he

was terminated in February 2015. In 2014, DISD hired Toldson to serve as a

paraprofessional teacher’s aide in the special education department at Ryan High

School (RHS) during the 2014–2015 academic year. He was initially assigned to assist

1
Under his “Issues Presented,” Toldson frames his appellate “issues” as
follows: “Appellee’s Motion for Summary Judgment on the retaliation claim should
have been denied because Appellant presented sufficient evidence of his retaliation
claim using both direct and circumstantial evidence and additional evidence that was
sufficient enough to rebut the non-discriminatory reasons given for firing him.” As
we note below, Toldson includes in both the summary of his argument and the body
of his brief a disheveled discussion that apparently relates to his sexual harassment
claim. For the reasons we explain, we do not believe Toldson has adequately
presented in his brief an issue challenging the trial court’s summary judgment
dismissal of his sexual harassment claim. Nevertheless, we address the relevant
arguments Toldson makes concerning that claim out of an abundance of caution.

2
in the classroom of Torsha Winrow, who was one of RHS’s special education

teachers. On September 18, 2014, Toldson went into assistant principal Ronda Bean’s

office and told her that he was frustrated, that Winrow was demanding, that he did

not understand what his responsibilities were in Winrow’s classroom, and that

Winrow was “almost militant-like.” Toldson made no allegation during this meeting

that Winrow had sexually harassed him. Bean encouraged Toldson to communicate

his concerns to Winrow and to ask her to give him a better understanding of his

responsibilities in her classroom, a course of action with which Toldson agreed.

On October 8, nearly three weeks after his September 18 meeting with Bean,

Toldson returned to Bean’s office to tell her that he still did not understand what his

responsibilities as Winrow’s teacher’s aide were. Toldson made no allegation at this

meeting that Winrow had sexually harassed him. Bean asked Toldson if he had

communicated his concerns to Winrow as they had discussed in their prior meeting,

and Toldson replied that he had not. Bean reiterated that Winrow was the classroom

teacher and that he needed to communicate with her about the areas with which he

was confused. Toldson agreed to meet with Winrow, and Bean asked him to let her

know how things were going after he did so.

Winrow and Toldson finally met on Friday, October 24, 2014, to discuss the

expectations she had for him as her teacher’s aide. The following Wednesday,

October 29, 2014, Toldson sent an email to the head of RHS’s special education

department, Tiffany Biggers, the entire substance of which said, “I need to meet with
3
you about Ms. Winrow.” Biggers was not on school grounds that day, but when she

returned the next day, she saw Toldson in the hallway and told him her availability to

meet. However, Toldson did not follow up with Biggers to schedule a meeting, and

he missed work the following Friday, October 31 and Monday, November 3.

On Tuesday, November 4, Biggers conducted a weekly meeting at which the

department’s paraprofessionals, Toldson included, were in attendance. After that

meeting was over, Toldson stayed behind and spoke with Biggers. Toldson told

Biggers that he was “tired of Ms. Winrow,” that Winrow was “too much” and was

inappropriate with the students, and that he was “fed up.” When Biggers asked

Toldson how Winrow had been inappropriate, he replied, “[A] lot of ways[,] and I’m

just tired of it[;] I have had enough.” Biggers asked Toldson to be specific about what

was going on, but he did not do so, and Biggers suggested that Toldson talk to

Winrow. Toldson replied, “[W]ell, I guess I will just snap” and walked away. Toldson

did not tell Biggers that Winrow had sexually harassed him.

At approximately 7:40 p.m. on November 4, Toldson sent an email to Bean. In

pertinent part, that email stated as follows:

Ms. Bean,

I have been trying to get help from several other staff members about an
issue I am facing and had no response[,] so now I am contacting [you].
For the past several months[,] things in the classroom with Ms. Winrow
have been getting progressively worse. I know we spoke previously
about an issue, but this is a different, and much worse[,] issue. . . .

4
 There have been a seri[e]s of incidents that I have been extremely
uncomfortable with in regard to Ms. Winrow being inappropriate with
myself and even students in the classroom . . . . She has made sexually
suggestive comments to myself as well as students in the classroom and
physically crossed boundaries with myself and students.

Toldson’s email further stated:

Other staff have also witnessed these activities taking place and have
echoed my concerns. I would love to talk to you about this further in
person[;] however, I thought I would attempt to contact you via email
first. I love my job and I love what I do[,] but I am getting to the point
where I literally dread coming to work because this woman has made my
job unbearable.

Bean did not read this email until the morning after Toldson sent it.

At approximately 5:50 a.m. on November 6, 2014, Toldson sent an email to

DISD deputy superintendent Richard Valenta complaining about Winrow, and he

copied RHS principal Vernon Reeves. In the email, Toldson said that he had been

told that Valenta was “the person to contact regarding issues at [RHS] that [were]

ongoing despite [his] best efforts to resolve them.” After making other complaints

about Winrow related to her performance in the classroom, Toldson wrote the

following:

In addition[,] there [have been] several occasions w[h]ere she made
sexually suggestive comments to myself or other aide[]s as well as . . .
touched me inappropriately. On one particular occasion[,] she stroked
my face while telling me a story about how a child used to masturbate
while looking at her lips. It made me extremely uncomfortable.

Toldson said that he had spoken to Bean about some issues related to Winrow, but he

stated that he did not tell Bean anything about Winrow’s “inappropriate physical

5
contact.” Toldson wrote that Winrow had “begun trying to retaliate against [him] for

talking to Mrs. Bean” and had “constantly been nit[]picking at [him] and asking [him]

to redo the same task over and over to satisfy her.”

In the email, Toldson also indicated that he had sought help from Biggers, and

he referenced his recent conversation with her, claiming that she had asked him how

he was “planning on resolving the issue” with Winrow and whether he was looking

for a new job. Toldson wrote that he had been told that “the only way [he] could get

out of Mrs. Winrow’s class was to move down in pay.” Toldson said that he had

witnesses who would “back up” everything he was alleging.

Reeves replied to Toldson’s email approximately five hours after he had sent it,

telling him, “[p]lease come by and see me. I will work with you on your concerns.”

Reeves interviewed Toldson “the first thing that morning.” During the interview,

Reeves told Toldson that he wanted to do everything he could to help but that

Toldson needed to provide specific details as to what had happened. But Toldson did

not provide many specifics. The only specific instance that Toldson provided to

Reeves was that on one occasion, while he and Winrow were sitting around a table in

the classroom, Winrow told the story about the student masturbating, and she

touched Toldson’s face when doing so. Toldson gave Reeves a list of people to talk

to who could corroborate his allegations of sexual harassment against Winrow.

Reeves offered to move Toldson to another classroom while he investigated

Toldson’s allegations, and Toldson accepted the offer. Thus, on the morning of
6
November 6—the same morning that he had sent his email to Valenta and Reeves—

Toldson was moved from Winrow’s classroom into the classroom of another RHS

special education teacher, Kristiey Rodriguez, until the investigation of his allegations

of sexual harassment could be completed. This move did not result in an alteration to

Toldson’s job title or pay.

The same day, Reeves began interviewing the potential witnesses Toldson had

identified, and he completed those interviews by the next day. Of the five school

employees that Reeves interviewed, Reeves did not find any who corroborated

Toldson’s allegations of sexual harassment against Winrow. Only one of the

witnesses, another RHS paraprofessional named Melody Hampton, claimed to have

seen Winrow touch Toldson. Hampton told Reeves that on a single occasion, she

had seen Winrow touch Toldson’s cheek when Winrow was leaving a table. But

Hampton added that she had not heard the conversation between Winrow and

Toldson that preceded the touch and that she did not know why Winrow had touched

Toldson. Hampton did not provide Reeves with any other specific information about

the touch, nor did she indicate that the touch appeared to be of a sexual nature.

After interviewing all the witnesses, Reeves interviewed Winrow. Winrow

acknowledged that at the beginning of the school year, she had informed Toldson

about a former student masturbating. She stated that she had done so in order to

educate Toldson, who was new to her classroom, about the types of students and

behaviors that he could encounter.
7
 Having concluded his investigation, Reeves met with Toldson on November 7

and told him that he did not find any corroboration of his allegations of sexual

harassment against Winrow. But Reeves told Toldson that he could see there was

tension between Toldson and Winrow and that he had decided to make Toldson’s

change to Rodriguez’s classroom permanent. Toldson asked Reeves if he could have

time to think about the decision and to talk to his wife about it, and Reeves agreed to

that request but asked Toldson to let him know by the end of the day in writing

whether his permanent placement in Rodriguez’s classroom was an acceptable

resolution to him or whether he would like the investigation into his allegations

against Winrow to continue.

But Toldson did not respond in writing, so on the morning of November 12,

Reeves emailed him to ask him whether he was satisfied with the investigation and

with his move to Rodriguez’s classroom or whether he wanted DISD’s human

resources department to further investigate his allegations. Also on November 12,

Regina Wright, DISD’s director of human resources over classified and operations

personnel, received an email with Toldson’s concerns, and she contacted Toldson and

scheduled a meeting with him for November 14 to discuss those concerns.

At 9:00 p.m. on November 12, Toldson replied to Reeves’s earlier email,

stating, “Upon returning to school on Monday [November 10] and still being

harassed[,] I have decided to continue the investigation and have since contacted

HR.” The next morning, Reeves forwarded Toldson’s email to DISD’s assistant
8
superintendent for human resources, Robert Stewart, stating that he had only just

learned of Toldson’s new allegation of harassment and that he would meet with

Toldson to find out specifically what had happened. That same morning, Reeves met

with Toldson and asked him to provide specific information about the harassment he

had suffered upon returning to school the previous Monday, but Toldson declined to

do so, stating that he preferred to give the details in writing and that he would do so

from his home computer. Reeves then allowed Toldson to return to his duties.

On November 14, Toldson emailed Wright to cancel their scheduled meeting,

and he sent another email to her requesting that she provide him with instructions on

how to initiate the formal grievance process. Wright provided him with the

instructions. Four days later, on November 18, Toldson filed a Level 1 grievance, in

which he restated, nearly verbatim, the allegations he had asserted in his November 6

email to Reeves. In addition, Toldson asserted that Biggers and Bean had retaliated

against him for his report against Winrow. The specific forms of retaliation that

Toldson reported were that Bean had yelled at him and had told him that he needed

to be at work on time and that Biggers had made him attend a mandatory department

meeting at which Winrow would be present. The only remedy Toldson requested in

the grievance was that he be removed from RHS and given a position at another

DISD school.

Wright was assigned as the hearing officer for Toldson’s November 18

grievance. On November 20, Wright called Toldson to discuss the grievance, to
9
initiate the investigation of it, and to discuss his requested remedy. Toldson did not

answer, and Wright left him two messages. Toldson returned her call later that day,

and they scheduled a meeting for the next day so that Wright could begin her

investigation. At her meeting with Toldson the next day, Wright informed Toldson

that she could accommodate his request to be moved to another school. But Toldson

wavered, indicating that he wanted to amend his grievance to seek a different remedy

than the one he had initially requested. Toldson asked if he could speak with his wife

and reschedule the meeting with Wright for a time after the school’s Thanksgiving

break.

Wright told Toldson that the grievance timeline would be put on hold until he

got back to her, and later that day, Toldson emailed her to say that he did not have

enough information to make an informed decision about her suggested grievance

remedy, that he felt as if he was being rushed, that he would be amending his

requested remedy, and that he wanted to know how to continue with the grievance

process. Wright responded to Toldson’s email, stating that she would move forward

with the grievance process and would schedule a hearing on his grievance.

On December 1, Toldson amended the requested-remedy portion of his

November 18 grievance, stating that he was now seeking to remain employed at RHS

but in a different capacity and that he additionally wanted Winrow, Bean, and Biggers

to be fired. Also on December 1, Toldson filed another Level 1 grievance, this time

complaining about Wright and Valenta for conduct related to the November 21
10
meeting on his November 18 grievance. In the December 1 grievance, Toldson

asserted that while he was on orders from his doctor to refrain from working, he was

“repeatedly contacted by individuals from [DISD] HR.” He claimed that he was

pressured to meet with Valenta and Wright about his November 18 grievance, that he

finally did meet with them “against [his] better judgment,” and that he was “bullied

into making a decision” regarding the grievance. Toldson stated that he wanted

Valenta and Wright to be fired.

On December 9, Wright held the Level 1 hearing on Toldson’s November 18

grievance, and she issued her decision on January 5, 2015. Wright said that based on

her own investigation, as well as the investigation Reeves had conducted, she found

no evidence to support Toldson’s allegations against Winrow. Wright noted that

despite the fact that Reeves had also not found any evidence to substantiate Toldson’s

claims, he nonetheless offered to move Toldson to another classroom and that

Toldson had found that resolution acceptable. Wright acknowledged Toldson’s claim

that he had suffered further harassment even after the move, but she said that he had

refused to provide any specific details concerning those allegations and that

consequently, further investigation of his claims had been unsuccessful. Wright

granted Toldson’s request to remain at RHS but denied his request that Winrow,

Biggers, and Bean be fired.

Meanwhile, another DISD employee, David Hicks, was assigned as the Level 1

hearing officer for Toldson’s December 1 grievance. Hicks held the hearing on that
11
grievance on December 15, 2014, and although Toldson attended that hearing, he did

not provide any additional details when asked about his allegations in that grievance

and instead noted that everything was already in the grievance document. Noting

Toldson’s refusal to provide additional information, Hicks concluded that Wright had

not violated Toldson’s rights but had simply been attempting to resolve his

November 18 grievance in the most informal setting possible and in a quick and fair

way. Hicks denied Toldson’s requested remedies. Toldson then appealed from

Wright’s and Hicks’s decisions on his Level 1 grievances, resulting in a Level 2

proceeding on each grievance.

While all of this had been going on, Toldson’s job performance at RHS was an

issue. Specifically, Toldson was often late to arrive, he often left early, and he was

often absent, all without providing proper notification to his superiors. He also took

longer breaks than allowed, as well as unauthorized breaks that left students

unsupervised. That pattern continued even after Reeves moved Toldson from

Winrow’s classroom to Rodriguez’s. From the periods of November 14 through

November 21 and December 1 through December 5, Toldson reported to work for a

single half day.2 Additionally, Toldson repeatedly claimed that being at RHS was

affecting his health and prohibiting him from performing his job.

2
The school district was on Thanksgiving break the week of November 24
through November 28.

12
 On January 16, 2015, because of Toldson’s claims that being at RHS was

negatively affecting his health, and in an attempt to remedy his attendance issues at

work, DISD made the decision to move Toldson to another school within the district.

The next day, Bean notified Toldson that he was being placed on administrative leave

with pay while DISD looked for another position for him.

Toldson was reassigned to Rivera Elementary School (RES), and on January 22,

Bean informed him that he was to report to RES on January 26. But Toldson did not

report to RES until January 29. Sometime during the school day on January 29,

Toldson told the RES teacher to whom he had been assigned that she was beautiful.

The next evening, Toldson sent the teacher text messages that were laced with

unwelcomed sexual innuendo. The following Monday, February 3, Toldson stared at

the teacher while she was working with a student, and when she and Toldson passed

by each other that day, Toldson brushed up against her.

In less than a week of working with the teacher, Toldson told her that she was

beautiful, that he was unhappy in his marriage, that she was “so [expletive] hot” and

that he “want[ed her].” On one occasion, Toldson placed his hand on the teacher’s

backside. On another occasion, Toldson began rubbing the teacher’s leg when they

were sitting at a table and whispered sexually suggestive statements to her. He also

made statements to her about the size of his male anatomy and grabbed her hand and

“moved it in a forceful way toward[] his private area.” The teacher reported

Toldson’s conduct.
13
 Upon learning of Toldson’s conduct toward his assigned teacher, the principal

at RES requested that Toldson not be permitted to return to the campus. Following

that request, Wright decided to terminate Toldson’s employment with DISD and

explained her decision in a letter, which stated as follows:

Dear Mr. Toldson:

This memo is to notify you of your status with Denton ISD.
During the current school year you submitted grievances, which alleged
sexual harassment and retaliation by a Special Ed teacher on the Ryan
High School campus and harassment and bullying by Human Resources
Administrative staff. The results of these investigations were deemed
unfounded. In addition, a complaint against a Special Ed teacher and
paraprofessional were filed by another employee on the Ryan campus
and you fully supported these allegations which the investigative results
again proved to be unfounded. During the investigation, other concerns
were revealed in regard to your attendance and work performance.
These concerns caused a major disruption of the campus work
environment; the Principal requested that you not return to the Ryan
Campus.

This recommendation facilitated a reassignment to the Tomas
Rivera campus. You were scheduled to report on January 26, 2015. You
failed to report or notify anyone of your absences and reported on
January 29, 2015, after receiving an email from the campus Principal.
You responded to the email and stated you were on medical leave during
this time which to date has not been validated. After being on the
campus for less than one week, an immediate charge was made by the
supervising teacher in the classroom you supported. She alleged that
you acted inappropriately with her via unwarranted unprofessional
communication and even more concerning, claims of sexual harassment.
Again, there was a major disruption of the work environment and the
Principal of this campus requested that you not return. For this reason,
we find it is in the best interest of the District to terminate your
employment, effective February 17, 2015. Please make sure all property
belonging to the District is returned and you will be contacted to
complete an exit. Should you have any personal items located on the

14
 Ryan or Rivera campus, please contact my office and we will secure
those items for you.

Sincerely,

[Signature]

In October 2015, Toldson sued DISD, asserting two claims under the TCHRA.

First, he alleged a claim of sexual harassment based on a hostile work environment.3

Second, he alleged a retaliation claim. See Tex. Lab. Code Ann. § 21.055. DISD filed

a motion for no-evidence and traditional summary judgment. The overarching basis

of that motion was that Toldson could not establish that DISD’s governmental

immunity had been waived. The trial court granted DISD’s motion without stating its

reasons for doing so and dismissed Toldson’s claims with prejudice. Toldson

appealed.

III. DISCUSSION

A. Standard of Review

We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d

860, 862 (Tex. 2010). When a party moves for both traditional and no-evidence

3
Under the TCHRA, sexual harassment is a form of sex-based discrimination,
which is prohibited by Section 21.051 of the Labor Code. Alamo Heights Indep. Sch.
Dist. v. Clark, 544 S.W.3d 755, 763, 771 (Tex. 2018); see Tex. Lab. Code Ann. § 21.051.
There are two general varieties of sexual harassment claims under the TCHRA:
(1) quid pro quo harassment, in which employment benefits were conditioned on
sexual favors; and (2) harassment that creates a hostile or offensive work
environment. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010);
Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 n.5 (Tex. 2004).

15
summary judgment, we first review the trial court’s ruling under the no-evidence

standard of review. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If

the trial court properly granted the no-evidence motion, we do not consider the

arguments raised regarding the traditional summary judgment motion. See id.

After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground that

no evidence supports an essential element of the nonmovant’s claim or defense. Tex.

R. Civ. P. 166a(i). The motion must specifically state the elements for which no

evidence exists. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The

trial court must grant the motion unless the nonmovant produces summary-judgment

evidence that raises a genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997

cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d

291, 292 (Tex. 2006). We review a no-evidence summary judgment for evidence that

would enable reasonable and fair-minded jurors to differ in their conclusions.

Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005)). We credit evidence favorable to the nonmovant if reasonable jurors could,

and we disregard evidence contrary to the nonmovant unless reasonable jurors could

not. Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d
16
572, 582 (Tex. 2006)). If the nonmovant brings forward more than a scintilla of

probative evidence that raises a genuine issue of material fact, then a no-evidence

summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009);

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

To prevail on a traditional summary judgment motion, the movant must

establish that no genuine issues of material fact exist and that it is entitled to judgment

as a matter of law. Tex. R. Civ. P. 166a(c); Little v. Tex. Dep’t of Criminal Justice,

148 S.W.3d 374, 381 (Tex. 2004). A defendant moving for summary judgment must

either (1) disprove at least one element of the plaintiff’s cause of action or (2) plead

and conclusively establish each essential element of an affirmative defense to rebut the

plaintiff’s cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When, as here, the

trial court’s summary judgment does not state the basis for the court’s decision, we

must uphold the judgment if any of the theories advanced in the motion are

meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.

2003).

B. Toldson’s Retaliation Claim

In what he identifies as his “Issues Presented,” Toldson asserts only that the

trial court erred by granting DISD summary judgment on his retaliation claim. In its

motion for traditional summary judgment, DISD asserted that it was entitled to

summary judgment on Toldson’s retaliation claim based on governmental immunity.

DISD focused on one particular element of Toldson’s retaliation claim, arguing that
17
he could not show a causal connection between the protected activity he alleged

(reporting Winrow for sexual harassment) and the adverse employment action he

alleged (DISD’s termination of his employment).

1. Law applicable to Toldson’s retaliation claim

Because DISD is a governmental unit, it is immune from suit absent an express

waiver of governmental immunity. See Alamo Heights, 544 S.W.3d at 770

(“Governmental units, including school districts, are immune from suit unless the

state consents.”). Toldson made his retaliation claim under the TCHRA, a statute that

provides a waiver of immunity, albeit a limited one: the waiver applies only when the

plaintiff states a claim for conduct that actually violates the Act. See id.; Mission Consol.

Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636–37 (Tex. 2012). In other words, absent

some evidence that the school district violated the TCHRA, the school district’s

governmental immunity is not waived. See Alamo Heights, 544 S.W.3d at 763.

To establish a retaliation claim under the TCHRA, a plaintiff must show that

(1) he engaged in an activity protected by the TCHRA, (2) an adverse employment

action occurred, and (3) there is a causal link between the protected activity and the

adverse action. Id. at 782. An employee may prove his retaliation claim with either

direct or circumstantial evidence of discriminatory intent. See Mission Consol.,

372 S.W.3d at 634. “Direct evidence of discrimination is evidence that, if believed,

proves the fact of discriminatory animus without inference or presumption.” McNeel

v. Citation Oil & Gas Corp., 526 S.W.3d 750, 756 (Tex. App.—Houston [14th Dist.]
18
2017, no pet.) (citations omitted). Proof by direct evidence is rare in employment

cases. See Alamo Heights, 544 S.W.3d at 782.

Because direct evidence of discriminatory intent is rarely available, the three-

part McDonnell Douglas burden-shifting framework permits an employee to raise a

presumption of discrimination with circumstantial evidence. Id.; see McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–26 (1973). If the employee

establishes a prima facie case of discrimination, a rebuttable presumption of

discrimination arises, which can alone sustain a discrimination claim. Alamo Heights,

544 S.W.3d at 782. But the employer can defeat this presumption merely by

producing evidence of a legitimate, nondiscriminatory reason for the adverse

employment action. Id. Once the presumption of discrimination is 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 at all times with the employee. Id. All parts of the

burden-shifting framework are jurisdictional. Id. at 764.

In addressing whether the respondent had put forth sufficient evidence of the

causation element of her retaliation claim in its decision in Alamo Heights, the supreme

court stated that it had yet to determine the appropriate causation standard for a

TCHRA retaliation claim. Id. at 783. It further stated that it did not need to decide

that question because both parties in the case had advocated the but-for causation
19
standard, and neither had asserted that another causation standard should apply. Id.

The majority thus applied the but-for standard in analyzing the retaliation claim at

issue. Id. As in Alamo Heights, both parties here have advocated a but-for causation

standard, and neither has argued that a different standard should apply. Accordingly,

we apply that causation standard in this case. See id.

The causation standard for the McDonnell Douglas prima-facie-case element is

not onerous and can be satisfied merely by proving close timing between the

protected activity and the adverse action. Id. at 782. But if the employer provides

evidence of a legitimate reason for the adverse action, under a but-for causation

standard, the employee must prove the adverse action would not have occurred “but

for” the protected activity. Id. The but-for causation standard is significantly more

difficult to prove than prima facie causation. Id.

2. No direct evidence of but-for causation

Toldson asserts that an email that Stewart allegedly sent to Wright and Valenta

is direct evidence that but for his report of sexual harassment, he would not have

been terminated from his position at DISD. In his brief, Toldson quoted at length

from this alleged email. DISD argues Toldson failed to support his contention about

the alleged email with appropriate citations to the record.

We agree with DISD. Toldson has provided no citation enabling us to locate

the alleged email in the summary judgment record, which exceeds 2,000 pages. But in

any event, we note that Toldson’s argument as to how the purported quote
20
constitutes direct evidence of causation is thin: he merely states that the lengthy

quotation in his brief is “direct evidence that his complaints of sexual harassment

served as a basis for his termination.” This argument is entirely conclusory, as it

offers no explanation as to how the alleged quotation constitutes direct evidence of

causation.

In his brief, Toldson also claims that Wright’s termination letter is direct

evidence of causation. But he did not present any argument explaining how that letter

constitutes direct evidence of causation. He merely asserts that the letter is “direct

evidence that [DISD] terminated [his] employment because of his complaints of

sexual harassment.” This, too, is nothing more than a conclusory argument.

Toldson bears the burden of supporting his contentions with appropriate

citations to the record. See Tex. R. App. P. 38.1(g), (i); King v. Wells Fargo Bank, N.A.,

205 S.W.3d 731, 734–35 (Tex. App.—Dallas 2006, no pet.). Toldson’s failure to

provide any record citation to the alleged email from Stewart does not satisfy this

burden. See King, 205 S.W.3d at 735 (noting that reviewing court is not required to

perform independent search of voluminous record to support a party’s argument).

Moreover, Toldson cannot meet his burden to show direct evidence of causation with

only bare conclusory arguments that are unsupported by appropriate citations, as he

has attempted to do in his brief with regard to Stewart’s alleged email and Wright’s

termination letter. See Tex. R. App. P. 38.1(i); Arzola v. ACM Props., LP, No. 04-12-

00713-CV, 2013 WL 5948413, at *1–2 (Tex. App.—San Antonio Nov. 6, 2013, no
21
pet.) (mem. op.). We conclude that Toldson has not met his burden to present direct

evidence that but for his report of sexual harassment, DISD would not have

terminated his employment.

3. No evidence of pretext

If Stewart’s email and Wright’s termination letter are not direct evidence of

causation, argues Toldson, then they are at least circumstantial evidence sufficient to

establish a prima facie case of causation. DISD does not quarrel with Toldson on this

particular part of the McDonnell Douglas burden-shifting scheme, arguing instead that it

presented evidence that it had legitimate, nonretaliatory reasons for terminating

Toldson’s employment and that Toldson has failed to present evidence raising an

issue of fact as to whether those reasons were pretextual. See Alamo Heights,

544 S.W.3d at 790 (holding that even assuming respondent established a prima facia

case of retaliation based on her termination, petitioner presented evidence sufficient

to rebut any such presumption).

a. DISD presented evidence showing legitimate, nonretaliatory reasons for
Toldson’s termination

We agree with DISD’s contention that it presented evidence of a legitimate,

nonretaliatory reason for terminating Toldson’s employment. As detailed above,

DISD presented evidence showing longstanding problems with Toldson’s job

performance at RHS, specifically with regard to his sporadic attendance. DISD

presented evidence showing that in an attempt to remedy those problems, it assigned

22
Toldson to RES and that he had been told to report to that campus on January 26.

DISD presented evidence showing that the same performance problems occurred

immediately upon Toldson’s reassignment to RES—Toldson did not report to the

campus when he was supposed to but instead reported on January 29.

DISD further presented evidence showing that immediately upon his arrival at

RES, he engaged in conduct toward a teacher that resulted in her reporting him for

sexual harassment and in the principal of RES requesting that he not be allowed to

return to the campus. And DISD presented evidence showing that Wright terminated

Toldson’s employment following the principal’s request and that she did so based on

Toldson’s longstanding attendance issues across multiple positions at multiple

campuses, as well as his own sexual harassment of the RES teacher, both of which

had caused major disruptions of the working environments at RHS and RES. We

conclude DISD presented evidence that Toldson’s termination occurred for

legitimate, nonretaliatory reasons, and that means the burden shifted back to Toldson

to raise a fact issue that DISD’s stated reasons for terminating him were but a pretext

and that he would not have been terminated but for his reporting Winrow for sexual

harassment. See id. at 782.

b. Toldson failed to show a fact issue on pretext

In evaluating but-for causation evidence in retaliation cases, we examine all of

the circumstances, including (1) temporal proximity between the protected activity

and the adverse action, (2) knowledge of the protected activity by the decisionmaker,
23
(3) expression of a negative attitude toward the employee’s protected activity,

(4) failure to adhere to relevant established company policies, (5) discriminatory

treatment in comparison to similarly situated employees, and (6) evidence the

employer’s stated reason is false. Id. at 790.

As DISD notes, Toldson did not address in his brief the third, fourth, and fifth

but-for causation factors. As to the remaining factors, Toldson’s arguments are

difficult to parse. As to the first and second factors—temporal proximity and

knowledge of the decisionmaker—Toldson appears to argue that the proximity

between his termination and his EEOC charge, his appeal of his Level 1 grievances,

and his appeal of his Level 2 grievances demonstrated a causal connection between

his report of sexual harassment and his termination. But Toldson did not cite to any

evidence showing when those respective events occurred or to any authority

supporting a conclusion that the timing of those events—whatever it happened to

be—was “very close” to his termination. See id. (noting that “[t]emporal proximity is

relevant to causation when it is ‘very close’” (citation omitted)). Additionally, Toldson

did not even assert, let alone cite evidence showing, that Wright, the person who

made the decision to terminate his employment, knew about either his EEOC charge

or his grievance appeals when she made the decision to terminate his employment.

That leaves factor six: evidence showing DISD’s reasons for terminating his

employment were false. Toldson advances four grounds purporting to show that

DISD’s stated reasons for terminating him were false. We consider each in turn.
24
 First, Toldson again points to the same email from Stewart that he alleged

showed direct evidence of retaliation, as well as to Wright’s termination letter. As to

Stewart’s purported email, Toldson again fails to cite us to its location in the

voluminous record, and for the reasons we already stated above regarding that email,

we will not go searching for it. See King, 205 S.W.3d at 735 (“It is not our duty to

make an independent search of the voluminous summary judgment record for

evidence supporting [a party’s] position.”).

That leaves Wright’s termination letter. Toldson asserts that Wright’s letter

“stated that Toldson was terminated because his complaints of sexual harassment

caused a major disruption in the work place.” But that is a misrepresentation of what

Wright’s letter says.4 Wright’s letter indeed stated that Toldson was being terminated

for causing a major disruption of his work place. In fact, to be more accurate, Wright

stated that Toldson was being terminated because he had caused two major

disruptions of two workplaces. But Wright did not tie either disruption to Toldson’s

report of sexual harassment. Rather, she stated that concerns over his attendance and

work performance at RHS had caused a major disruption of the RHS campus work

environment, which had led its principal to request that he not return there. And she

stated that his conduct toward a teacher at RES that resulted in the teacher making a

sexual harassment claim against him had caused a major disruption of the work

4
We have quoted the letter in its entirety above.

25
environment at RES, which had led its principal to also request that he not return. So

Wright’s letter does not create a fact issue as to whether DISD’s stated reasons for

terminating Toldson’s employment were false.

Second, Toldson attempts to show that DISD’s stated reasons for terminating

him were false by asserting that “[i]t is difficult to understand what [DISD’s] alleged

non-retaliatory reasons are because the testimony and evidence by the decision

makers is inconsistent.” Toldson references alleged testimony from Reeves, Stewart,

and Wright that he argues demonstrates DISD’s inconsistent explanations for his

termination. But Toldson does not cite us to the location of the purported testimony

upon which he relies for this argument, and as with Stewart’s alleged email, we will

not comb through the record to find evidence to support Toldson’s contentions that

DISD offered inconsistent reasons for its decision to terminate his employment.

See id.

Third, Toldson points to testimony from Reeves, Biggers, and Bean, alleging

that they testified that Toldson’s attendance issues at RHS were not a problem and

that this demonstrates that DISD’s stated reasons for terminating him were false. But

Toldson provides a record cite only to the asserted testimony from Reeves. Toldson

claims that Reeves testified that his attendance issues were “not a big deal,” and based

on that statement, Toldson argues that DISD’s assertion that his attendance issues

caused a major disruption was false. In his deposition, Reeves testified that Toldson’s

attendance problems were not a big deal before he made his complaint. But contrary
26
to Toldson’s assertion, this statement is so vague and devoid of context as to be

insufficient to show that DISD’s stated reasons for terminating Toldson’s

employment were false. See Alamo Heights, 544 S.W.3d at 790 (concluding deposition

testimony that respondent relied upon was “vague and so devoid of context” that it

had barely a scintilla of probative value on whether her employer had expressed a

negative attitude toward her protected activity).

Finally, Toldson claims that the falsity of DISD’s stated reasons for terminating

him is demonstrated by the fact that it retaliated against three other employees by

terminating their employment after they made claims of workplace discrimination.

But he cites no evidence to support either his assertion that such employees were

terminated or that they made claims of workplace discrimination. And in any event,

even assuming Toldson is correct that DISD did terminate those other three

employees’ employment, Toldson’s claims about the reasons for their termination are

purely conclusory and merely state his subjective belief that they were terminated as

retaliation for their engaging in a protected activity. See Niu v. Revcor Molded Prods. Co.,

206 S.W.3d 723, 731 (Tex. App.—Fort Worth 2006, no pet.) (“[A]n employee’s

subjective beliefs of retaliation are merely conclusions and do not raise a fact issue

precluding summary judgment in a retaliatory discharge claim.”).

Having reviewed all of the causation factors, we conclude that Toldson has

failed to raise a fact issue that he would not have been terminated but for his report of

27
sexual harassment against Winrow. Accordingly, DISD’s governmental immunity has

not been waived as to Toldson’s retaliation claim.

C. Toldson’s Sexual Harassment Claim

As might be apparent from our analysis of Toldson’s retaliation claim,

Toldson’s briefing with respect to that claim was borderline deficient. But for the

reasons explained below, to the extent his brief can be understood to present a second

issue complaining about the trial court’s summary judgment dismissal of his sexual

harassment claim, we conclude that Toldson has inadequately briefed that issue and

thus has waived it. But even if we were to consider Toldson’s briefing related to his

sexual harassment claim to be adequate, we would nevertheless uphold the trial

court’s summary judgment on that claim because Toldson has failed to produce more

than a scintilla of evidence showing that DISD knew he was being sexually harassed

and failed to take prompt remedial action.

1. Law applicable to Toldson’s sexual harassment claim

To establish a prima facie case of sexual harassment based on a hostile work

environment, a plaintiff must show that (1) he belonged to a protected group, (2) he

was subjected to unwelcome sexual harassment, (3) the harassment complained of was

based on sex, (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 and failed to take remedial action. Tex. Dep’t of Fam. & Protective Servs. v.

28
Whitman, 530 S.W.3d 703, 710 (Tex. App.—Eastland 2016, no pet.); see Alamo Heights,

544 S.W.3d at 771.

In its no-evidence motion for summary judgment, DISD asserted that Toldson

had no evidence of the fourth or fifth elements. Thus, to defeat DISD’s no-evidence

motion, Toldson was required to produce more than a scintilla of probative evidence

that raised a genuine issue of material fact as to both of those elements. See Smith,

288 S.W.3d at 424; King Ranch, 118 S.W.3d at 751.

2. Inadequate briefing

As a preliminary matter, we note that DISD suggests that Toldson has waived

any argument that the trial court erred by granting summary judgment on his sexual

harassment claim because Toldson has inadequately briefed that matter. We agree.

First of all, DISD is correct that Toldson did not include among the issues

presented in his brief a complaint regarding the trial court’s dismissal of his sexual

harassment claim. Rather, as we have noted above, he quite plainly stated that the

sole issue presented in his brief is that the trial court erred by granting DISD’s motion

for summary judgment as to his retaliation claim. See Tex. R. App. P. 38.1(f) (noting

that an appellant’s brief “must state concisely all issues or points presented for

review”). Accordingly, in his issues presented, Toldson did not concisely state an

issue clearly challenging the trial court’s summary judgment dismissal of his sexual

harassment claim, nor is that particular issue one that is subsidiary to the only issue

Toldson actually presented. See id.
29
 That notwithstanding, however, under his “Summary of the Argument,”

Toldson included vague references to his sexual harassment claim. And following the

arguments in his brief attacking the trial court’s summary judgment dismissal of his

retaliation claim, Toldson included further discussion under headings entitled,

“Toldson has sufficient evidence of his sexual harassment claims against [DISD]”;

“Toldson was subjected to severe or pervasive sexual harassment that affected the

terms, conditions, or privileges of his employment”; and “Defendant knew or should

have known of the harassment and failed to take prompt remedial action.”

We recognize the supreme court’s admonition that a party can preserve a

complaint in the body of its brief even if it is not separately presented as an issue in

the brief. See Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012). But even

so, such complaints still must be adequately briefed. See Hornbuckle v. Cadillac, No. 02-

15-00267-CV, 2016 WL 3157569, at *2 (Tex. App.—Fort Worth June 2, 2016, no

pet.) (mem. op.). And with respect to the discussion in the body of his brief regarding

the trial court’s summary judgment dismissal of his sexual harassment claim, Toldson

has not done so, particularly with respect to his discussion concerning the fifth

element of his sexual harassment claim—whether DISD knew or should have known

that he was being harassed but failed to take prompt remedial action.

An appellant’s brief must “contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.” Tex.

R. App. P. 38.1(i); ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex.
30
2010) (recognizing that “[t]he Texas Rules of Appellate Procedure require adequate

briefing.”). It is not our role to brief Toldson’s complaint for him; if we did so, we

would be abandoning our role as neutral adjudicators and would become an advocate.

See Gann v. Anheuser-Busch, Inc., 394 S.W.3d 83, 89 (Tex. App.—El Paso 2012, no pet.);

Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). In the absence

of appropriate record citations or a substantive analysis, a brief does not present an

adequate appellate issue. See Tex. R. App. P. 38.1(i); Hornbuckle, 2016 WL 3157569,

at *2.

In an effort to show that he has more than a scintilla of evidence to create a

fact issue on this fifth element of his sexual harassment claim, Toldson put forth (by

our count) nineteen sentences asserting a bevy of facts that ostensibly are supported

by the record. After setting out all of that alleged evidence, Toldson merely

concludes, “Therefore, Appellant provided sufficient evidence to the trial court to

establish that he had at least some evidence, and certainly more than a scintilla of

evidence” to show a fact issue as to that fifth element.

As we have noted, the summary judgment record in this case exceeds 2,000

pages. Of the nineteen sentences of alleged facts Toldson relies upon to show a fact

issue on the fifth element, eight contain no citation to the record whatsoever. Six

others contain citations only to “Exhibit J, L” or “Exhibit L.” And three of the five

remaining sentences include “Exhibit D, Exhibit 11, p6” within the citation Toldson

provided to support them. With respect to Exhibits D, J, and L, Toldson provided
31
no reference to the specific place in the appellate record where those particular

exhibits can be found.

The lack of specific direction with respect to those exhibits is especially

problematic in this case given the voluminous record before us. The record reflects

that in his response to DISD’s motion, Toldson relied on sixteen primary exhibits,

which he identified using letters in the fashion “Exhibit A,” “Exhibit B,” continuing

through “Exhibit P.” Many of those exhibits were entire deposition transcripts or

affidavits that had additional sub-exhibits attached to them. At least some of those

sub-exhibits used the exact same identifying method Toldson employed for his

primary exhibits. For example, Toldson’s “Exhibit L” has twenty exhibits that are

themselves labeled “Exhibit A” through “Exhibit T.” Toldson’s generic citations to

Exhibits D, J, and L are thus so imprecise and unclear that they do not sufficiently

point us to the specific evidence he alleges those exhibits contain.

Toldson’s failure to furnish any record citation for many of the facts he relies

upon to show a fact issue on element five leaves us unable to analyze that purported

evidence without first undertaking our own independent search of the voluminous

record. Likewise, his general citations to Exhibits D, J, and L leave us unable to

analyze the asserted facts that are allegedly supported by those exhibits without

performing our own independent search for them. As we have already explained, we

have no duty to search the voluminous record for evidence supporting Toldson’s

argument. See King, 205 S.W.3d at 735.
32
 In addition to his failure to provide appropriate citations to the record to

support most of his assertions regarding the fifth element of his sexual harassment

claim, Toldson also failed to provide substantive argument on that matter. As noted

above, his analysis explaining how the alleged evidence he set out shows a fact issue

on element five is conclusory. His argument runs as follows. First, Toldson states

two legal propositions:

Under the law, an employer may be liable for sexual harassment if it
knew or should have known of the harassment in question and failed to
take prompt remedial action. Williamson v. City of Houston, 148 F.3d 462,
464 (5[th] Cir. 1998). An employer has actual knowledge of harassment
when it is known to “higher management” or someone who has the
power to take action to remedy the problem. Sharp v. City of Houston,
164 F.3d 923, 929 (5[th] Cir. 1999).

Second, Toldson sets forth the meagerly-cited factual assertions noted above. And

third, after reciting those alleged facts, Toldson merely concludes, “Therefore,

Appellant provided sufficient evidence to the trial court to establish that he had at

least some evidence, and certainly more than a scintilla of evidence, to defeat

Defendant’s traditional and no-evidence summary judgment motion.” Thus, Toldson

provided no substantive explanation as to how the purported evidence he attempts to

rely upon constitutes more than a scintilla of evidence creating a fact issue on the fifth

element of his sexual harassment claim. Rather, his argument amounts to nothing

more than a bare assertion that the evidence he claims is in the record creates such a

fact issue. That is not sufficient to comply with Rule 38.1(i)’s requirements. See

Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 650 (Tex. App.—Houston [1st
33
Dist.] 2015, no pet.) (noting that a party does not satisfy Rule 38.1(i) by making

conclusory arguments).

In sum, in his issues presented, Toldson presents a single issue challenging only

the trial court’s summary judgment dismissal of his retaliation claim. See Tex. R. App.

P. 38.1(f). And to the extent Toldson’s brief can be construed as attempting to

present an issue challenging the trial court’s summary judgment on his sexual

harassment claim, he has not provided appropriate record citations and substantive

analysis to support his arguments regarding the fifth element of that claim.

Accordingly, his briefing is inadequate with respect to that matter. See Tex. R. App. P.

38.1(i); Holmes v. Cassel, No. 01-16-00114-CV, 2017 WL 3389908, at *5 (Tex. App.—

Houston [1st Dist.] Aug. 8, 2017, no pet.) (mem. op.) (noting that Rule 38.1(i)’s

requirements are not satisfied by conclusory statements); Hornbuckle, 2016 WL

3157569, at *2 (“In the absence of appropriate record citations or a substantive

analysis, a brief does not present an adequate appellate issue.”); Magana v. Citibank,

N.A., 454 S.W.3d 667, 680–81 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(holding that appellant waived issue by inadequately briefing it).

3. No evidence that DISD knew or should have known that Toldson
was being harassed and failed to take prompt remedial action

Even if we were to conclude that Toldson’s brief adequately presents an issue

challenging the trial court’s summary judgment on his sexual harassment claim, he

34
nevertheless would not prevail because we do not agree that he has presented more

than a scintilla of evidence creating a fact issue on the fifth element.

We begin our analysis with a caveat. As noted above, Toldson relies upon

several factual assertions that he does not support with any citation to the 2,000 page

summary judgment record. He supports several other factual assertions with

imprecise and vague citations to the record. For the reasons already explained, we

have no duty to perform our own independent search of the record for evidence

supporting Toldson’s contentions. See King, 205 S.W.3d at 735. We thus will not

consider Toldson’s unsupported factual assertions in our analysis. We note, however,

that Toldson cites to eleven pages of his own deposition to support some of the

factual assertions he makes, and because he has adequately cited us to those pages, we

will analyze whether the cited portions of his deposition are sufficient to show a fact

issue on element five.

From the portions of his factual assertions that are supported by appropriate

citations to the clerk’s record, it appears Toldson relies upon two pieces of evidence

to show a fact issue on element five. First, he points us to his deposition testimony

concerning his October 29, 2014 email to Biggers. He asserts that he sent this email

to Biggers but that she failed to respond to it. We presume Toldson contends that

this email put DISD on notice that he was being sexually harassed and that Biggers’s

alleged lack of response shows that DISD did not take prompt remedial action. From

the cited portions of Toldson’s deposition, the most we can glean regarding the
35
email’s substance is that the email simply said, “I need to meet with you about

Ms. Winrow.” But that brief statement conveys nothing about sexual harassment and

is insufficient to show that after Biggers received it, DISD knew or should have

known that Toldson was making allegations of sexual harassment.

Second, Toldson also points to a portion of his deposition testimony in which

he claims to have testified that he emailed Bean and told her (1) that he had been

trying to get help from other staff members with no response, (2) that Winrow had

made sexually suggestive comments to him and to students and that the issue was

getting progressively worse, and (3) that Winrow’s behavior toward him was so

unbearable that he dreaded coming to work. We have carefully reviewed the nine

pages of the clerk’s record that Toldson cites to support these assertions, and they

provide no support for the factual assertions Toldson advances.

Thus, even if we did not find Toldson’s brief wanting as to the trial court’s

summary judgment dismissal of his sexual harassment claim, he nevertheless would

not prevail. It was his burden to present more than a scintilla of evidence to show a

fact issue on every element of his sexual harassment claim that DISD challenged in its

no-evidence motion for summary judgment. See Smith, 288 S.W.3d at 424; King Ranch,

118 S.W.3d at 751. DISD challenged the fourth and fifth elements of Toldson’s

sexual harassment claim, and Toldson failed to meet his burden to show a fact issue

36
on the fifth element.5 Thus, the trial court did not err by granting summary judgment

on Toldson’s sexual harassment claim.

IV. CONCLUSION

We hold that the trial court did nor err by granting DISD summary judgment

on Toldson’s retaliation claim. Thus, we overrule that issue. We further hold that to

the extent Toldson’s brief attempts to present an additional issue complaining of the

trial court’s summary judgment on his sexual harassment claim, Toldson waived that

issue by inadequately briefing it and even assuming he did not, he nevertheless failed

to produce more than a scintilla of evidence showing a fact issue on the fifth element

of that claim. We therefore overrule that issue. Accordingly, we affirm the trial

court’s judgment. See Tex. R. App. P. 43.2(a).

/s/ Dana Womack

Dana Womack
Justice

Delivered: November 21, 2019

5
Because Toldson had the burden to produce more than a scintilla of evidence
to show a fact issue as to both the fourth and fifth elements of his sexual harassment
claim, our conclusion that he failed to meet his burden with respect to the fifth
element is dispositive, and we need not address Toldson’s arguments related to the
fourth element. See Tex. R. App. P. 47.1.

37