2015-07

Microsoft Corporation// Michael Mercieca v. Michael Mercieca// Cross-Appellee, Microsoft Corporation ( 2015 )

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ACCEPTED
14-15-00024-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/6/2015 5:12:55 PM
CHRISTOPHER PRINE
CLERK
No. 14-15-00024-CV
FILED IN
14th COURT OF APPEALS
IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS
HOUSTON, TEXAS 7/6/2015 5:12:55 PM
CHRISTOPHER A. PRINE
Clerk
MICROSOFT CORPORATION,
Appellant/Cross-Appellee,
v.
MICHAEL MERCIECA,
Appellee/Cross-Appellant.
On Appeal from the 353rd District Court, Travis County, Texas
Trial Court Cause No. D-1-GN-11-00130
The Honorable Tim Sulak, Presiding
APPELLANT’S REPLY BRIEF
BECK REDDEN LLP BECK REDDEN LLP
Russell S. Post Eric J.R. Nichols
State Bar No. 00797258 State Bar No. 14994900
rpost@beckredden.com enichols@beckredden.com
Kate Skagerberg Gretchen S. Sween
State Bar No. 24058578 State Bar No. 24041996
kskagerberg@beckredden.com gsween@beckredden.com
1221 McKinney, Suite 4500 515 Congress Avenue, Suite 1900
Houston, TX 77010 Austin, TX 78701
(713) 951-3700 (512) 708-1000
(713) 951-3720 (Fax) (512) 708-1002 (Fax)
Counsel for Appellant/Cross-Appellee, Microsoft Corporation
Oral Argument Requested
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS ...................................................................................................i
INDEX OF AUTHORITIES..............................................................................................iv
INTRODUCTION ............................................................................................................ 1
ARGUMENT IN REPLY .................................................................................................. 4
I. MERCIECA PROVIDES NEITHER LAW NOR EVIDENCE TO
SUPPORT A CONCLUSION THAT MICROSOFT RETALIATED
AGAINST HIM BY COMPELLING HIS CONSTRUCTIVE
DISCHARGE. ........................................................................................... 4
A. Mercieca Provides Neither Law Nor Evidence to
Support the Jury’s Constructive Discharge Finding. .................. 4
1. Mercieca has no law to support the constructive
discharge finding. ............................................................. 4
2. Mercieca has no facts to support the
constructive discharge finding. ......................................... 8
3. Mercieca’s scattershot approach to proving
constructive discharge is legally impermissible. ............ 13
B. Mercieca Has No Evidence of Good Faith
Engagement in a Protected Activity. ........................................ 18
1. Mercieca’s first HR complaint does not
evidence good-faith engagement in a TCHRA-
protected activity. ........................................................... 19
2. Mercieca’s second HR complaint does not
evidence good-faith engagement in a TCHRA-
protected activity. ........................................................... 22
C. Mercieca Has No Evidence of Actionable Retaliation. ............ 24
1. Mercieca has no evidence of causation. ......................... 24
i
2. Mercieca has no cognizable theory, only
impermissibly stacked inferences to support his
so-called “secret anti-Mercieca campaign.” ................... 26
II. ALTERNATIVELY, MERCIECA’S DAMAGES EVIDENCE IS SO
TAINTED THAT THE ONLY REMEDY IS TO REVERSE AND
RENDER JUDGMENT FOR MICROSOFT. .................................................. 31
A. The Back-Pay Award Is Unsustainable. ................................... 32
B. The Compensatory Damages Award Is Unsustainable. ........... 32
C. The Attorneys’ Fee Award Is Unsustainable. ........................... 37
CONCLUSION AND PRAYER FOR RELIEF .................................................................... 38
CERTIFICATE OF SERVICE .......................................................................................... 40
CERTIFICATE OF COMPLIANCE .................................................................................. 41
APPENDIX*
Jury Charge/Verdict ................................................................................ TAB A
Findings of Fact and Conclusions of Law .............................................. TAB C
Internal HR Submission styled “Formal Complaint of Michael
Mercieca,” dated April 19, 2010 (18RR:MSFT90) .................................TAB E
Employee Relations Investigations Intake Form, dated May 10,
2010 (18RR:MSFT108) ........................................................................... TAB F
Internal HR Submission styled “Supplementation,” dated June 9,
2010 (18RR:MSFT121) .......................................................................... TAB G
Plaintiff’s Third Amended Petition (CRS499-519)................................ TAB H
Letter announcing Mercieca’s resignation, dated February 22,
2012, effective April 2, 2012” (18RR:MSFT221) ................................... TAB I
2011 Performance Review for Michael J.B. Mercieca, dated
September 8, 2011 (18RR:MSFT216) .................................................... TAB J
ii
Employee Relations Investigations Summary Memo, dated
October 4, 2010 (18RR:MSFT180) ....................................................... TAB M
Email string from M. Mercieca to G. Houston, dated May 5, 2010
(19RR:MSFT297) ................................................................................... TAB N
* The Tabs included here are among those in the Appendix to the Appellant’s
Brief; for the Court’s convenience, those cited in this brief are attached here using
the same Tab numbers along with Tabs M & N, which contain additional material
drawn from the record.
iii
INDEX OF AUTHORITIES
CASE PAGE(S)
Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. and
Research Corp.,

299 S.W.3d 106

(Tex. 2009) .............................................................................. 26
Azubuike v. Fiesta Mart, Inc.,

970 S.W.2d 60

(Tex. App.—Houston
[14th Dist.] 1998, no pet.) ................................................................................... 23
Bates v. Dallas Indep. Sch. Dist.,

952 S.W.2d 543

(Tex. App.—Dallas
1997, writ denied) ................................................................................................. 6
Bennett v. Grant,

2015 WL 1324857

(Tex. App.—Austin
Mar. 20, 2015, no pet.)........................................................................................ 35
Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485

(1984) ............................................................................................ 31
Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53

(2006) ................................................................................................ 1
Carlton v. Houston Cmty. Coll.,

2012 WL 3628890

(Tex. App.—Houston
[1st Dist.] Aug. 23, 2012, no pet.) (mem. op.) ..................................................... 5
Chandler v. CSC Applied Techs., LLC,

376 S.W.3d 802

(Tex. App.—Houston
[1st Dist.] 2012, pet. denied).......................................................15, 21, 24, 25, 31
City of Keller v. Wilson,

168 S.W.3d 802

(Tex. 2005) ........................................................................30, 36
City of Laredo v. Montano,

414 S.W.3d 731

(Tex. 2013) .............................................................................. 37
EEOC v. La. Office of Cmty. Servs.,

47 F.3d 1438

(5th Cir 1995) ................................................................................. 1
iv
El Apple I, Ltd. v. Olivas,

370 S.W.3d 757

(Tex. 2012) ........................................................................37, 38
Emeritus Corp. v. Blanco,

355 S.W.3d 270

(Tex. App.—El Paso
2011, pet. denied).............................................................................................. 7, 8
Faragher v. City of Boca Raton,

524 U.S. 775

(1998) .............................................................................................. 8
Hancock v. Variyam,

400 S.W.3d 59

(Tex. 2013)................................................................................. 35
Harris-Childs v. Medco Health Solutions, Inc.,
169 F. App’x 913 (5th Cir. 2006) .................................................................19, 23
Hensley v. Echerhart,

461 U.S. 424

(1983) ............................................................................................ 37
Houston Unlimited, Inc. v Mel Acres Ranch,

443 S.W.3d 820

(Tex. 2014) .............................................................................. 31
Jefferson Cnty v. Davis,

2014 WL 4262184

(Tex. App.—Houston
[14th Dist.] Aug. 28, 2014, pet. filed) (mem. op.) .............................................. 33
Lozano v. Lozano,

52 S.W.3d 141

(Tex. 2001)................................................................................. 26
Marathon Corp. v. Pitzner,

106 S.W.3d 724

(Tex. 2003) ........................................................................26, 30
Mathis v. Lockwood,

166 S.W.3d 743

(Tex. 2005) .............................................................................. 31
Methodist Hosp. v. Zurich Am. Ins. Co.,

329 S.W.3d 510

(Tex. App.—Houston
[14th Dist.] 2009, pet. denied) ............................................................................ 32
Mission Consol. Indep. Sch. Dist. v. Garcia,

372 S.W.3d 629

(Tex. 2012) ................................................................................ 9
v
Passons v. Univ. of Tex. at Austin,

969 S.W.2d 560

(Tex. App—Austin
1998, no pet.) ........................................................................................................ 6
Pegram v. Honeywell,

361 F.3d 272

(5th Cir. 2004) .............................................................................. 18
Ptomey v. Tex. Tech Univ.,

277 S.W.3d 487

(Tex. App.–Amarillo
2009, pet. denied)................................................................................................ 18
San Antonio Water Sys. v. Nicholas,
-- S.W.3d --,

2015 WL 1873217

   (Tex. Apr. 24, 2015) .....................................................................................18, 19
Satterwhite v. City of Houston,
602 F. App’x 585 (5th Cir. 2015) (per curiam) ................................................ 8, 9
Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp.,

435 S.W.2d 854

(Tex. 1968) .............................................................................. 26
Seminole Pipeline Co. v. Broad Leaf Partners, Inc.,

979 S.W.2d 730

(Tex. App.—Houston
[14th Dist.] 1998, no pet.) ................................................................................... 33
Soledad v. U.S. Dep’t of Treasury,

304 F.3d 500

(5th Cir. 2002) .............................................................................. 24
T.O. Stanley Boot Co. v. Bank of El Paso,

847 S.W.2d 218

(Tex. 1992) .............................................................................. 26
Tiner v. Tex. Dep’t of Transp.,

294 S.W.3d 390

(Tex. App.—Tyler
2009, no pet.) ................................................................................9, 10, 11, 12, 13
United Nat’l Ins. Co. v. AMJ Invests., LLC,

447 S.W.3d 1

(Tex. App.—Houston
[14th Dist.] 2014, pet. dism’d) ............................................................................ 38
Univ. of Texas-Pan Am. v. Miller,

2013 WL 4818355

(Tex. App.—Austin
Aug. 28, 2013, no pet.) (mem. op.)..................................................................... 18
vi
Vaughan v. Hartman Mmgt.,

2010 WL 5514335

(Tex. App.—Houston
[14th Dist.] Dec. 28, 2010, pet. denied) (mem. op.) ............................................. 4
Wal–Mart Stores, Inc. v. Itz,

21 S.W.3d 456

(Tex. App.—Austin
2000, pet. denied).................................................................................................. 7
Warrick v. Motiva Enter., L.L.C.,

2014 WL 7405645

(Tex. App.—Houston
[14th Dist.] Dec. 30, 2014, no pet.) (mem. op.) ...........................................19, 21
Winters v. Chubb & Son, Inc.,

132 S.W.3d 568

(Tex. App.—Houston
[14th Dist.] 2004, no pet.) ................................................................................... 37
Wright v. Wal-Mart Stores, Inc.,

73 S.W.3d 552

(Tex. App.—Houston
[1st Dist.] 2002, no pet.) ..................................................................................... 26
Zaffuto v. City of Hammond,

308 F.3d 485

(5th Cir. 2002) .............................................................................. 24
vii
INTRODUCTION
State and federal law encourages employees to come forward in good faith
to report instances of discrimination and sexual harassment they experience in the
workplace.       These profoundly important civil rights laws are not intended,
however, to be vehicles for recovering enormous damages based on subjective
distress about workplace communication problems or for “judicial second-guessing
of employment decisions.” EEOC v. La. Office of Cmty. Servs.,

47 F.3d 1438

,
1448 (5th Cir 1995) (citation omitted); see also Burlington N. & Santa Fe Ry. Co.
v. White,

548 U.S. 53

, 68 (2006) (reminding that Title VII “does not set forth ‘a
general civility code for the American workplace.’”) (quoting cases).
Mercieca’s case rests solely on a subjective suspicion that a co-worker
complained about him because, at some undefined time, for some unexplained
reason, his entire management chain “conspired to launch their secret anti-
Mercieca campaign,” as he puts it, and used the co-worker as a pawn in their
“secret” scheme. Appellee’s Br. at 36. This theory—even if it had any factual
basis, which it does not—does not correspond to a claim under the Texas Labor
Code (“TCHRA”). Therefore, in response to Microsoft’s appeal, Mercieca does
not offer a coherent, linear narrative explaining how the evidence he adduced
provides     a    legally   sufficient   basis   to   satisfy   the   elements   of   a
retaliation/constructive discharge claim under Section 21.055 of the TCHRA.
Instead, he does what he did at trial: masks the absence of relevant facts with a
1
scattershot recitation of his subjective take on various isolated incidents, some
dating back a decade before he engaged in the claimed “protected activity,” and
some that date well after he filed suit—and even after he finally left his job with
Microsoft voluntarily seven months later.1
In struggling to defend the jury’s findings, Mercieca grossly misrepresents
the actual substance of the hodgepodge of evidence adduced at trial. For instance:
 He insists that his performance “became an issue for the first time in his
career at Microsoft” only after he complained about his managers on April
19, 2010. Appellee’s Br. at 51. In fact, the evidence shows that his annual
review for 2005—five years earlier—noted that his current “role was not
going to work out as a career choice” and indicated that he “did not meet
expectations.” 18RR:MSFT7. Thereafter, his 2006 midyear review still
noted “needs improvement” in multiple categories. 18RR:MSFT8.
 Similarly, he claims that he only got a poor review in September 2011
because Eddie O’Brien, a Microsoft vice president, issued an “edict” to rate
him at the lowest performance level. Appellee’s Br. at 15, 51. But Mercieca
entirely ignores the uncontroverted evidence about how and why he was
ranked as he was relative to his larger sales group by the person who
actually prepared the review. See TAB J; 10RR20-29.
 Further, Mercieca asserts that, in “mid-2009 to early 2010,” his managers
“made unsolicited comments about Mercieca needing a job.” Appellee’s Br.
at 27. The incidents to which he alludes happened well before he claims to
have engaged in any protected activity and thus, as explained below, cannot
be “retaliation” under the TCHRA. Moreover, no one ever told him that he
“needed to find a new job,” as Mercieca spins it.

Id. He relies,

for instance,
on a joke O’Brien made in the summer of 2009 after Mercieca had
performed with a band at a Microsoft event. Mercieca testified that,
“[O’Brien] said that -- he said that if -- I could get my friend, Bono, from U2
1
In a two-week trial, Mercieca testified for days about his subjective perception of
isolated incidents spanning over a decade. 5RR92-268; 6RR220-278; 7RR6-277; 8RR5-221;
9RR6-67.
2
to give you a job.” That Mercieca found it “strange” in 2009 that O’Brien
teased Mercieca about joining one of the most popular bands in history is
hardly evidence that Mercieca was constructively discharged in 2012.
8RR81-82.
 Additionally, to support the incorrect assertion that he was told to look for
another job, Mercieca refers to announcements regarding positions within
Microsoft, sent to him before April 19, 2010, that would have resulted in
promotions. 18RR:MSFT39, 18RR:MSFT63. That he, who had initially
worked for Microsoft in Australia and was from England, thought it “weird”
that he was invited to apply for significant promotions to positions in New
Zealand (on October 6, 2009) and in Europe (on February 11, 2010) is not
evidence that he was constructively discharged in 2012.
 Equally inaccurate is his claim that, in a phone call on April 15, 2010, his
direct supervisor “told Mercieca he needed to find a new job.” Appellee’s
Br. at 27. The transcript of that call, which Mercieca secretly recorded,
reveals that Mercieca spent over 40 minutes haranguing his supervisor, who
hardly spoke. 11RR9-52. After he had reduced her to tears, he was the one
who demanded: “Are you telling me to look for another job?,” to which she
answered, “No.” 11RR30-31. Mercieca later told HR that she had
threatened to fire him during this conversation, 7RR238-39, but that
characterization was as untrue then as it is now.
 He also incorrectly asserts that a Microsoft HR director told his managers
that they should “let it go” with respect to the co-worker’s complaints about
Mercieca because there was “nothing there.” See Appellee’s Br. at 51. To
support this reputed “fact,” he cites nothing but his own testimony—
8RR217—when he attempted to explain the basis for his view that a
“conspiracy” had been launched against him; his testimony is, however,
nothing more than rank speculation.
Ultimately, the most compelling “evidence” to which Mercieca’s brief refers
does not exist. The evidence actually adduced at trial does not satisfy the standard
of legal sufficiency to support a finding of retaliatory constructive discharge, as a
matter of law.
3
ARGUMENT IN REPLY
Mercieca’s brief pays relatively little attention to the core issue of whether
there was legally sufficient proof to support the jury’s liability findings. This is
because the record is bereft of evidence to support the findings of (1) constructive
discharge, (2) good faith engagement in a protected activity, or (3) but-for
causation; thus there are three distinct reasons for reversing and rendering a take-
nothing judgment for Microsoft. Additionally, if the Court were to reach the
multiple damages issues raised in the appeal and cross-appeal—which Microsoft
respectfully suggests will be unnecessary—the damages evidence is so flawed that
it amounts to no evidence at all, thus also warranting reversal and rendition.
I.    MERCIECA PROVIDES NEITHER LAW NOR EVIDENCE TO SUPPORT A
CONCLUSION THAT MICROSOFT RETALIATED AGAINST HIM BY
COMPELLING HIS CONSTRUCTIVE DISCHARGE.
A. Mercieca Provides Neither Law Nor Evidence to Support the Jury’s
Constructive Discharge Finding.
1. Mercieca has no law to support the constructive discharge
finding.
Mercieca has no legal support for his position that the proof adduced at trial
is sufficient to sustain the jury’s finding that he was constructively discharged. In
responding to Microsoft’s legal sufficiency challenge, Mercieca instead leans
heavily on a breach of contract case. Appellee’s Br. at 25-26 (citing Vaughan v.
Hartman Mmgt.,

2010 WL 5514335

(Tex. App.—Houston [14th Dist.] Dec. 28,
2010, pet. denied) (mem. op.)). The charge-error issue in Vaughan is irrelevant to
4
the issue of the quantum and quality of proof required to support a constructive
discharge finding. Microsoft has not raised a charge-error issue in this appeal.
The issue is whether Mercieca adduced a scintilla of evidence that satisfies the
correct legal standard, which was accurately articulated by the trial court in the
jury charge: did his employer make “conditions so intolerable that a reasonable
person in the employee’s position would have felt compelled to resign.” TAB A,
Question 7.
None of the constructive discharge cases cited in Mercieca’s brief supports
the notion that (1) the evidence of workplace incidents Mercieca adduced represent
conditions so “intolerable” as to reasonably compel a resignation or (2) a person
can sue his employer and then resign months later, as he did, declaring his
unilateral decision a retaliatory constructive discharge. For example, Mercieca
cites Carlton v. Houston Cmty. Coll.,

2012 WL 3628890

(Tex. App.—Houston [1st
Dist.] Aug. 23, 2012, no pet.) (mem. op.), which affirmed the trial court’s decision
to grant summary judgment for defendant on plaintiffs’ retaliation claims. The
Carlton plaintiffs had complained of: being passed over for promotions, “effective
demotions and reduced responsibilities,” an “unfair” investigation of “sexual
harassment complaints,” and other “hostile acts.”

Id. at *12.

“[A]s a matter of
law,” the allegations did “not rise to the level of an adverse employment action.”

Id. at *13.

5
One of Mercieca’s few reported TCHRA cases, Passons v. Univ. of Tex. at
Austin,

969 S.W.2d 560

, 564-65 (Tex. App—Austin 1998, no pet.), is also a
charge-error case—again, not an issue that Microsoft has raised. In Passons, the
court of appeals reversed based on the trial court’s erroneous instruction that the
plaintiff was required to show that the claimed discrimination was the “sole cause”
or “the basis” for the reputed constructive discharge.

Id. at 562

(emphasis
retained). To determine whether the charge error was harmful, the court evaluated
the record and concluded that “we cannot say that the cumulative effect of the
conduct here could not support a jury finding of constructive discharge.”

Id. at 564.

In reaching this conclusion, Passons notes evidence that, during a discrete
period following an audit, the plaintiff was “more harshly punished than were her
male counterparts for engaging in” the same misconduct, that she “was threatened
with criminal and financial sanctions which she contends were unjustified and
humiliating,” and that “her supervisors belittled and demeaned her in front of her
own staff, preventing her from effectively doing her job.”

Id. As discussed

below,
Mercieca adduced no comparable evidence. But even Passons recognized that
“mere harassment, without more, is insufficient” to create an issue of material fact
as to whether workplace conditions were objectively intolerable.

Id. (citing Bates

v. Dallas Indep. Sch. Dist.,

952 S.W.2d 543

, 551 (Tex. App.—Dallas 1997, writ
denied)).
6
By contrast, Wal–Mart Stores, Inc. v. Itz illustrates what can constitute
legally sufficient evidence of constructive discharge.

21 S.W.3d 456

(Tex. App.—
Austin 2000, pet. denied). In Itz, the court of appeals relied on evidence, in
affirming judgment for the plaintiff, that the plaintiff’s supervisor: repeatedly
called her at home at night to ask about her relationship status; promised to put her
up in an apartment if she broke up with her boyfriend; complimented her body;
touched her inappropriately during a one-on-one back-room meeting; was “‘always
hovering around her and following her’”; gave her a “‘very forceful’” “‘body-to-
body’” hug; pressed her to break up with her boyfriend; and after she reported this
conduct, the employer did not respond to her at all.

Id. at 462-65,

473-75.
Mercieca did not adduce evidence of anything remotely akin to such conduct.
Surprisingly, Mercieca suggests that the jury was “entitled” to adopt his
constructive discharge theory because his situation at Microsoft resembles the
circumstances presented in Emeritus Corp. v. Blanco,

355 S.W.3d 270

(Tex.
App.—El Paso 2011, pet. denied). Appellee’s Br. at 30. Emeritus affirmed a
constructive discharge claim brought by a whistleblower against an assisted living
facility. Plaintiff Blanco, an administrator, was brought in to try to right a non-
compliant facility.

Id. at 272.

She left her job after less than one year, thereafter
filing suit. The evidence showed that, during her brief tenure, her employer failed
to take action to remedy the following: “medications [were] not being properly
documented or dispensed, proper medical attention [was] not being provided and
7
addressed, documentation to the residents charts [was] not being properly charted,
communication to the doctors [was] not up to date[.]”

Id. at 275.

At one point,
Blanco was called to an Alzheimer patient’s room, where the patient was lying in
bed with a mass protruding from her body.

Id. at 273.

Blanco had to track down a
nurse in another facility because hers did not have a single nurse on staff; she then
agonized as the patient “suffered from multiple issues while waiting for surgery.”

Id. at 274.

Instead of responding to Blanco’s requests for support, her employer
“formally reprimanded” Blanco for permitting the facility to get “behind on
billing.”

Id. She thereafter

resigned, providing a detailed list of the concerns that
had shaken her, with an entreaty “that you immediately address these concerns to
ensure the safety and well being of the residents.”

Id. at 275.

No evidence in the record supports the notion that Mercieca experienced any
comparable “conditions so intolerable” that his after-the-fact resignation can be
deemed objectively reasonable.

Id. at 281.

2. Mercieca has no facts to support the constructive discharge
finding.
“‘[I]solated incidents (unless extremely serious)’ do not amount to
actionable conduct” under either Title VII or the TCHRA. Satterwhite v. City of
Houston, 602 F. App’x 585, 588 (5th Cir. 2015) (per curiam) (quoting Faragher v.
City of Boca Raton,

524 U.S. 775

, 788 (1998)).        TCHRA and Title VII claims
“based on isolated incidents of non-extreme conduct” are routinely rejected “as
8
insufficient as a matter of law.”

Id. (citing cases

and finding plaintiff failed to
make a prima facie case of retaliation).2 This is true under both federal and state
law. See, e.g., Tiner v. Tex. Dep’t of Transp.,

294 S.W.3d 390

, 395 (Tex. App.—
Tyler 2009, no pet.) (finding that the plaintiff “did not show that the working
conditions were unbearable, or that her employer was attempting to encourage her
to resign.”)
In Tiner, the court painstakingly considered the various incidents upon
which the employee relied, in the light most favorable to the employee, and found
those incidents, taken together, did not amount to intolerable conditions as a
matter of law.

Id. at 394-97.

Tiner merits considerable attention, because the
isolated incidents at issue there are comparable to those upon which Mercieca
relies. See Appellee’s Br. at 27-29, 33-35.
First, Tiner insisted that her employer had mishandled a conflict with one of
her co-workers.

Tiner, 294 S.W.3d at 396

. Likewise, Mercieca claims that his
managers mishandled Tracy Rummel’s internal complaint about his conduct, that
2
In Satterwhite, the plaintiff was actually demoted and received a salary cut at the
recommendation of the supervisor about whom the plaintiff had complained for allegedly saying
“Heil Hitler” in a meeting. 602 F. App’x at 586. By contrast, Mercieca experienced no
demotion or salary cut. Satterwhite and the precedent upon which it rests are persuasive. While
Mercieca takes issue with Microsoft’s reliance on federal cases, this critique is unfounded, as the
Supreme Court of Texas has “consistently held that those analogous federal statutes and the
cases interpreting them guide [its] reading of the TCHRA.” Mission Consol. Indep. Sch. Dist. v.
Garcia,

372 S.W.3d 629

, 634 (Tex. 2012). Similarly, he asserts that Microsoft has no “on-point
authority” to support the type of constructive discharge theory pursued here. Appellee’s Br. at
19, 37. What is true is that neither party can point the Court to any case in which a constructive
discharge claim has been maintained based on facts similar to those Mercieca adduced at trial.
9
he felt “marginalized” as a result, and that he had to file his own internal complaint
against his management chain to learn what had happened to Rummel’s complaint.
TAB E; Appellee’s Br. at 8, 9, 27. But the evidence shows that, after Rummel took
her initial concerns to Mercieca’s manager, to her own Microsoft manager, and to
its HR department, Microsoft directed her to follow up with the contracting agent
then employing her.3 18RR:MSFT48-50. Then, after Rummel became a full-time
employee, she reached out again to Microsoft’s HR department after experiencing
what she saw as repercussions attributable to Mercieca. TAB F. While Mercieca
threatened “legal escalation” unless he was told what Rummel had said about him
during her confidential interview, Microsoft explained that doing so would violate
company policy; however, Microsoft kept him fully informed as the investigation
moved forward. 18RR:MSFT105; 18RR:MSFT126; 18RR:MSFT97;
18RR:MSFT115.
Second, Tiner insisted that her own complaints were ignored, despite
evidence that the employer conducted an internal investigation, as Mercieca

does. 294 S.W.3d at 396

. The evidence here shows that Microsoft conducted an
extensive investigation into both Rummel’s and Mercieca’s HR complaints.
18RR:MSFT260. Microsoft found insufficient evidence that its anti-discrimination
3
As noted in the Appellant’s brief, when Rummel first raised her concerns about
Mercieca, she was employed as a contract employee through an agency and assigned to work
with Mercieca on marketing issues for some of Mercieca’s Microsoft “partner”/client accounts.
Appellant’s Br. at 6-7.
10
or anti-harassment policies had been violated in either instance, but reprimanded
Aulds for failing to disclose that she had once had a brief romantic relationship
with Mercieca, which they had both kept to themselves until 2010 when he
produced evidence of photocopied love letters and voicemails from 2001-2002
during the ERIT investigation. 18RR:MSFT178; 18RR:MSFT189. Aulds was
then removed from his management chain. 6RR83-85; 10RR68-69. No evidence
supports Mercieca’s insistence that she was “promoted” after the reprimand.4
Likewise, no adverse employment action against Mercieca resulted from the
internal investigation,5 although the investigator found reason to suspects his
motives. 18RR:MSFT178; 6RR75-79; TAB M.
Third, Tiner insisted that the co-worker with whom she had difficulty was
“abusive, threatening, and unpleasant”—which Mercieca cannot reasonably
claim—yet the court of appeals found the proffered evidence “no basis to conclude
that [the employer] somehow created unendurable working conditions” or that this
situation “caused Tiner to resign months

later.” 294 S.W.3d at 397

. Similarly,
Mercieca complains that Aulds was permitted to give him a review in 2010
4
Appellee’s Br. at 14 (citing testimony that contradicts the contention that she was
“promoted,” 6RR183-84; 11RR86-87, and Mercieca’s subjective testimony that he nevertheless
regarded the change as a promotion, 6RR218-19).
5
As addressed in the Appellant’s brief, poor performance evaluations, which an
employee views as unfair, cannot form the basis of a constructive discharge claim. Appellant’s
Br. at 20-21, 30-31, 36-37. Regardless, Mercieca did not receive the poor review about which he
complains until September 8, 2011, well after members of his management chain had changed
and long after Rummel’s HR complaint against him had been resolved. 18RR:MSFT216; TAB J.
11
(Appellee’s Br. at 14, 28) while his HR complaint about her was pending. Yet (1)
that review was largely positive; and (2) he did not resign until nearly two years
later, well after Aulds had been removed from his management chain entirely and
replaced by someone he liked and admired. 18RR:MSFT166; 7RR144;
18RR:MSF394; TAB I.
Fourth, Tiner insisted “that her supervisor got into an argument with her,
ended her access to his email, and stopped talking to her”—yet the court of appeals
held that this conduct did “not rise to the level of conduct designed to badger,
harass, or humiliate Tiner,” and found no basis to “conclude that the conduct was
calculated to encourage her resignation.”

Id. at 395.

Here Mercieca relies heavily
on these kinds of communication issues, including his subjective interpretation of
emails as unduly “scrutinizing” his work. See, e.g., 18RR:MSFT57-60.
Fifth, Tiner complained about the tone of meetings with her supervisors, as
Mercieca

does. 294 S.W.3d at 396

. Mercieca, however, points to nothing in any
meeting that could be viewed objectively as “badgering, harassing, or humiliating
or that [] was calculated to encourage [him] to resign.”

Id. Indeed, the

meetings
and phone calls with his colleagues that Mercieca secretly recorded show his
managers talking with him about business concerns and trying to resolve
communication issues as he raised them. 18RR:MSFT58-MSFT61. Furthermore,
as in Tiner, the meetings with his direct supervisor (Lori Aulds) and skip-level
12
manager (David Tannenbaum) about which Mercieca complains “took place
months before [he]

resigned.” 294 S.W.3d at 396

.
In short, Tiner, like Mercieca, “was not satisfied with the way her supervisor
handled [a] situation.”

Id. at 397.

But such subjective frustration “does not rise to
the level of an adverse employment action.”

Id. Like Tiner,

Mercieca “was not
fired or demoted, [he] was not reassigned or suspended. The minor actions that did
occur do not represent meaningful changes in the conditions or privileges of [his]
employment.” Id.; 8RR65-70.
3. Mercieca’s scattershot approach            to   proving    constructive
discharge is legally impermissible.
Tiner helps to illuminate the fundamental failings of Mercieca’s constructive
discharge proof. But Mercieca’s constructive discharge theory is burdened by
additional analytical problems not present in Tiner. First, the incidents upon which
Tiner focused all happened within a discrete timeframe, while Mercieca’s
perceived slights are scattered over a period of years. Second, Tiner’s incidents all
happened before she resigned, thus conceivably supporting a claim that they
compelled her departure.      Mercieca did not resign until months after suing
Microsoft. CRS11-33; TAB J.
The isolated incidents about which Mercieca complains were (and remain)
untethered to any discrete time that could rationally be relevant to his reputed
constructive discharge. Many of the incidents listed in his brief as comprising the
13
“constructive discharge puzzle” can be disregarded, in accordance with basic rules
of cause and effect. Appellee’s Br. at 27-30. To begin with, Mercieca’s initial HR
“formal complaint,” dated April 19, 2010, describes concerns that do not relate to
any anti-discrimination or anti-harassment policy. TAB E; TAB M at MS37863.
Although Mercieca now tries to recast the April 2010 complaint as a “charge of
gender discrimination,”6 events that predate his April 2010 complaint cannot
logically show that he was constructively discharged as retaliation for making that
complaint. Appellee’s Br. at 32.
For instance, Mercieca relies on the brief affair he had with Aulds in 2001.7
He then describes comments Aulds made to him in 2008, when he fully supported
her for the position of manager of his sales group.8

Id. at 5-6;

33-35.
After emphasizing the 2001 affair, Mercieca restarts his narrative in “mid-
2009 and early 2010,” stating that “[o]n April 15, 2010”—several days before he
had lodged any complaint against his managers—“Aulds told Mercieca he needed
to find a new job.”

Id. at 27.

To support this statement, Mercieca cites his own
testimony in which he refers to a phone call he had with Aulds, which he secretly
recorded.

Id. (citing 9RR61).

The transcription of that phone call does not support
6
At trial, Mercieca asked the jury to find that his alleged constructive discharge was
motivated by his age or his national origin, which the jury declined to do. Tab A, Question 8.
7
Mercieca continues to reference a “sexual harassment” claim made in June 2010
premised on his 2001 relationship with Auld, which Microsoft investigated and found baseless
and which even Mercieca dropped before the formal charge conference. CRS520-521; TAB A.
8
See, e.g., 8RR259-61; 8RR264-65; 8RR267; 18RR:MSFT10.
14
his representation that she told him he “needed to find a new job.” 11RR9-52.
Moreover, the call cannot be evidence of retaliatory constructive discharge, as
Mercieca had not yet made the reputed charge of discrimination. Even Mercieca’s
self-serving (and inaccurate) testimony about this call shows that he was having
communication problems with Aulds in “e-mail traffic going backwards and
forwards” about his expense reports or “T&Es.” 5RR238. Mercieca’s prickliness
in communications with his supervisor predated any alleged protected activity and
had nothing to do with allegations of discrimination. 16RR:PX35; see also
11RR9-52; 18RR:MSFT20; 18RR:MSFT21; 18RR:MSFT40; 18RR:MSFT55;
18RR:MSFT57. This dispute about expense reports cannot reasonably be deemed
part of what “compelled” him to resign years later.
Similarly, Mercieca cites his own testimony, in which he states that, leading
up to March 26, 2010, he felt “subjected to a lot of harassment, bullying, and
retaliation.” 9RR7. First, Mercieca’s subjective beliefs “are insufficient to
establish a prima facie case” of an unlawful employment practice. Chandler v.
CSC Applied Techs., LLC,

376 S.W.3d 802

, 814 (Tex. App.—Houston [1st Dist.]
2012, pet. denied). Second, even Mercieca did not attribute his discomfort in the
months leading up to his HR “formal complaint” to discrimination. In that HR
complaint, he claimed that he felt “marginalized” because Rummel’s concerns
about him had “led to an escalation within HR” and to his management team, and
he found it “extremely upsetting” that “[a]t no time was I ever consulted about this
15
by anyone.” TAB E. Feeling “marginalized” and distressed because Rummel had
voiced concerns about him cannot be evidence that Microsoft unlawfully retaliated
against him for memorializing those feelings in an HR complaint that had not yet
been made. Whatever Mercieca felt before April 19, 2010 when he engaged in the
alleged protected activity does not prove that afterwards Microsoft retaliated by
making circumstances so “intolerable” that a reasonable person would have been
compelled to resign two years later.
Additionally, some of Mercieca’s purported evidence that he was
“constructively discharged” hinges on material that he only learned of through
litigation. For instance, he refers obliquely to a “plan” to “eliminate” him.
Appellee’s Br. at 8, 27. His reputed proof of this “plan” is an internal Microsoft
document—emailed on April 16, 2010 between two upper-level managers—
describing a proposed “FY11 Field Sales Team Structure.” 16RR:PX152
(proposing, inter alia, eliminating Mercieca’s sales position as duplicative). There
is no evidence that Mercieca ever saw this document while he worked at
Microsoft. The document was prepared in response to a directive from upper
management about the need to consider workforce reductions throughout the
organization—and the proposal was never implemented. 6RR57-62. Despite
Mercieca’s post-resignation efforts to seize upon this document as confirming his
suspicions, this internal discussion about a potential workforce reduction is
unremarkable. Regardless, this evidence does not and cannot support a
16
constructive discharge finding. Mercieca did not know about this document and,
as is evident by the fact that Microsoft continued to employ him for another two
years until he voluntarily left, the plan was not implemented. Furthermore, as the
proposal was made before Mercieca had lodged any HR complaint against his
managers, it cannot conceivably be considered “retaliation” against Mercieca for
an HR complaint he had not yet made. Compare 16RR:PX152 with TAB E.
Equally unsound is Mercieca’s reliance on incidents that occurred after he
had already sued Microsoft and even after he finally announced his departure. For
instance, Mercieca cites as evidence of intolerable conditions his testimony about a
potential “FY2012” evaluation that never took place. Appellee’s Br. at 16, 29.
Mercieca’s last review was a mid-year review conveyed to him on March 9,
2012—several days after he had already resigned (via a letter sent from his
litigation counsel to Microsoft’s outside counsel on February 22, 2012).
Mercieca’s manager at that time, Joe Sahagian, only commenced giving the review
because Mercieca had not told Sahagian about the decision to resign, “effective
April 2, 2012,” until they were in the middle of the review. TAB I; 10RR216. An
event that never occurred and another that occurred only after a person has already
resigned cannot evidence “intolerable” conditions that compelled the resignation.
Mercieca’s alleged constructive discharge is premised entirely on his
subjective interpretation of isolated incidents scattered over a ten-year period. This
is an insurmountable problem. He cannot articulate specific events, related in time
17
to his decision to leave Microsoft, that the law recognizes as supporting a finding
of objectively intolerable workplace conditions sufficient to compel a reasonable
person to resign. Even if the isolated incidents in Mercieca’s “constructive
discharge puzzle” could be amassed together, they are legally insufficient to show
intolerable conditions and thus actionable retaliation under the TCHRA. But
isolated incidents “cannot be lumped together” to try to prove a discrete act, like a
constructive discharge. Univ. of Texas-Pan Am. v. Miller,

2013 WL 4818355

, *8
(Tex. App.—Austin Aug. 28, 2013, no pet.) (mem. op.); see also Pegram v.
Honeywell,

361 F.3d 272

, 280-81 (5th Cir. 2004) (finding various discrete
employment actions not actionable under continuing violations doctrine); Ptomey
v. Tex. Tech Univ.,

277 S.W.3d 487

, 494 (Tex. App.–Amarillo 2009, pet. denied)
(rejecting reliance on “events occurring between 1997 and [plaintiff’s] termination
in 2002” to prove employment experience was one of continuous discrimination).
B.     Mercieca Has No Evidence of Good Faith Engagement in a
Protected Activity.
The    TCHRA      “protects   from      retaliation   employees   who   oppose
discriminatory employment practices.” San Antonio Water Sys. v. Nicholas, --
S.W.3d --,

2015 WL 1873217

, *1 (Tex. Apr. 24, 2015). As the Texas Supreme
Court has recently stated, when “no reasonable person could have believed” that
the complained-of conduct “gave rise to an actionable sexual-harassment [or
discrimination] claim,” the employee cannot show that he “engage[d] in a
18
protected activity under the TCHRA.”

Id. at *1,

*2 (vacating jury finding for
plaintiff on retaliation after concluding plaintiff “did not engage in a protected
activity under the TCHRA”).
This Court recently articulated the correct standard for satisfying the
protected-activity element.    See Warrick v. Motiva Enter., L.L.C.,

2014 WL 7405645

, *7 (Tex. App.—Houston [14th Dist.] Dec. 30, 2014, no pet.) (mem. op.).
To qualify as a protected activity, “[t]he employee must put the employer on notice
that the employee is opposing practices that the [employee] believes constitute
prohibited discrimination.”

Id. (quoting numerous

cases). “[T]he relevant inquiry
is not [the employee’s] intentions in sending [for instance an] e-mail, but whether
her opposition to proscribed discriminatory practices was discernible in the e-mail
itself.”

Id. at *8

(citing Harris-Childs v. Medco Health Solutions, Inc., 169 F.
App’x 913, 916 (5th Cir. 2006) (holding employee produced no evidence that
“when she made her complaints to management, [she] ever mentioned that she felt
she was being treated unfairly due to her race or sex”)).
1. Mercieca’s first HR complaint does not evidence good-faith
engagement in a TCHRA-protected activity.
Mercieca now endeavors to recast his first HR complaint, submitted on April
19, 2010, as a charge of “gender-based discrimination.” Appellee’s Br. at 32. To
support this characterization, Mercieca directs the Court away from the HR
complaint itself—which says nothing about discrimination of any kind. TAB E.
19
Instead, Mercieca points to a subsequent complaint that Mercieca made, which he
mentioned at some point during the internal ERIT investigation that commenced
after June 9, 2010. Appellee’s Br. at 32. During that investigation, Mercieca
suggested that he had been offended by an email that O’Brien had sent to his entire
U.S. sales team touting “Two Female Promotions to Director in USOEM!” TAB N.
Mercieca does not direct the Court to the reputedly offending email, but to a
summary of the entire internal investigation of his HR complaints. Appellee’s Br.
at 32 (citing 16RR:PX125). The summary upon which Mercieca relies notes that
he did not mention discrimination of any kind until after he was notified in May
2010 that Rummel’s allegations were to receive an ERIT investigation:
Tab M at MS37863.
Regardless of whether O’Brien’s May 2010 email could be read objectively
as offensive—as opposed to an effort to celebrate gender diversity within company
management—it is not evidence that Mercieca’s April 2010 HR complaint alleged
discrimination.   First, his April 2010 HR complaint was made weeks before
20
O’Brien’s email was sent. TAB G. A complaint about an email sent in May 2010
cannot support a finding that his April 2010 complaint informed Microsoft of a
charge of “gender discrimination.” Second, Mercieca’s invocation of the O’Brien
email would not have put Microsoft on notice that Mercieca was claiming
discrimination or sexual harassment.    “For workplace comments to provide
sufficient evidence of discrimination, the comments must be,” inter alia, “(1)
related to the plaintiff’s protected class, (2) proximate in time to the adverse
employment decision, … and (4) related to the employment decision at issue.”

Chandler, 376 S.W.3d at 816

. The O’Brien email was not about a class to which
Mercieca belonged; the email was sent nearly two years before Mercieca resigned;
and the email was unrelated to any employment decision that affected Mercieca.
TAB N.
Mercieca’s April 2010 HR complaint speaks for itself and confirms what the
record otherwise shows: that in late February 2010, Mercieca learned from Aulds
that Rummel had raised a concern about Mercieca’s behavior and that Rummel had
reported her concerns; he then began demanding an “exoneration” regarding a
“baseless rumor” about him that he felt Rummel had authored and Aulds had
needlessly referred to HR. 7RR159; 7RR161-64. An objective reading of the
April 2010 complaint (TAB E) and his communications with HR leading up to the
emailing of that complaint (18RR:MSFT64; 18RR:MSFT67) show that his conduct
did not qualify as a TCHRA-protected activity. See, e.g., Warrick,

2014 WL 21

7405645 at *8-*9 (explaining that employee’s email did not qualify as TCHRA-
protected activity because it only accused a co-worker of “unethical conduct,”
stated that she had written “the EEOC about how the [other] employee” was
“stealing time,” and “alleged serial bullying” but did not notify employer of
mistreatment “based on a protected characteristic”).     Instead, the April 2010
complaint confirms, as Mercieca later testified, that he felt “betrayed” that his
managers had been “talking behind his back” about Rummel’s concerns and had
not come first to him—a long-time employee—about the concerns of a mere
“contract” worker. 7RR168-170. During his initial conversations with HR, he did
not mention sexual harassment or discrimination based on gender or national origin
or any other protected ground. 12RR19-27; 12RR31-32; 12RR35. As he said at
the time, he was motivated to submit a counter HR complaint, directed against his
managers, to “play the percentage shot.” 7RR183.
2. Mercieca’s second HR complaint does not evidence good-faith
engagement in a TCHRA-protected activity.
As explained in the Appellant’s brief, the “supplementation” that Mercieca’s
lawyer submitted to Microsoft’s HR department on June 9, 2010 on Mercieca’s
behalf does not evidence a good faith claim of discrimination. Appellant’s Br. at
41-43; see also TAB M at MS37863 (noting “it was not until [Mercieca] was
notified of the ERIT investigation in May 2010 [of Rummel’s allegations] that he
raised his allegations of discrimination.”). The “supplementation” does not add
22
any concrete information regarding his grievances; it contains only conclusory
assertions that he is complaining of “harassing, discriminatory, and retaliatory
conduct based on his gender and national origin” and “sexual harassment,” words
invoked solely to trigger a Microsoft ERIT investigation of his grievances. TAB G;
8RR41-41;       11RR216-217;        18RR:MSFT97;         18RR:MSFT313.          The
“supplementation” was only submitted after Mercieca and his lawyer had learned
from a Microsoft ERIT investigator that Mercieca’s April 2010 complaint did not
fall within the scope of the company’s anti-discrimination and anti-harassment
policies. 18RR:MSFT97; 18RR:MSFT115; 18RR:MSFT74; 18RR:MSFT78-80.
Only after the investigator had explained at length precisely why Mercieca’s
grievances fell outside ERIT’s scope did Mercieca’s lawyer prepare the June 9
“supplementation” including, for the first time, vague charges of discrimination.
As this Court has explained, “[a] vague charge of discrimination will not
invoke protection under the statute.” Azubuike v. Fiesta Mart, Inc.,

970 S.W.2d 60

, 65 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Vague references to
discrimination and harassment do not “put the employer on notice that the
complaint was based on” unlawful employment practices. Harris-Childs, 169 F.
App’x at 916.
Even assuming that Mercieca subjectively believed that what he had
experienced was unlawful “discrimination” or “sexual harassment,” his belief is
23
insufficient as a matter of law. “Subjective beliefs of discrimination alone are
insufficient to establish a prima facie case.”
C.     Mercieca Has No Evidence of Actionable Retaliation.
1.     Mercieca has no evidence of causation.
An employer cannot conceivably retaliate against an employee for engaging
in a protected activity until after the employee engages in something that qualifies
as TCHRA-protected conduct. See, e.g., Zaffuto v. City of Hammond,

308 F.3d 485

, 493 (5th Cir. 2002) (holding that the plaintiff failed to state a Title VII
retaliation claim where the record demonstrated that his suspension occurred
before he engaged in the protected activity); Soledad v. U.S. Dep’t of Treasury,

304 F.3d 500

, 507 (5th Cir. 2002) (affirming grant of summary judgment on
retaliation claim where there was little evidence to show that the defendant “took
certain actions because of [plaintiff’s] protected activity”). Further, Texas law
requires evidence of but-for causation: “plaintiff must establish ‘but for’ causal
nexus between the protected activity and the prohibited conduct.”

Chandler, 376 S.W.3d at 823

(finding “no evidence [plaintiff] engaged in the protected activity of
complaining that he was not included [on trip list] because of his race and was then
subsequently terminated”) (emphasis retained).
To try to elude his causation problem, Mercieca has continuously shifted this
retaliation theory. For instance, in his opening statement, Mercieca’s counsel
suggested that his managers’ motivation for “retaliating” against him was “because
24
he’s got no high school education, he’s got no college education.” 3RR205. In
closing, Mercieca’s counsel argued that Microsoft was motivated by Mercieca’s
age (which no one at trial knew) and his national origin (British). 12RR121-22.
Age discrimination was not even mentioned in his EEOC charge or in either of his
internal HR complaints. TAB E & TAB G.
Now, on appeal, Mercieca suggests that Microsoft “conspired to launch their
secret anti-Mercieca campaign” after he “report[ed] the O’Brien incidents.”
Appellee’s Br. at 36. Indeed, that “campaign” was so “secret” that he has no
evidence to support it. Moreover, this newest theory does not help him establish
causation because Mercieca only complained about O’Brien’s comments (which
were neither about, nor directed at, Mercieca) after Rummel had expressed
concerns about his conduct and after he had complained to HR because his
managers had listened to her. Compare TAB E with TAB N. Moreover, his alleged
“constructive discharge” was nearly two years thereafter. TAB I. In short, there is
no evidence of any adverse employment action proximate to any protected activity,
thus no causation. See

Chandler, 376 S.W.3d at 816

(finding plaintiff presented
“no evidence” that racially derogatory comments “were made close to the time of
the adverse employment decision at issue” and thus could not support TCHRA
claims).
25
2. Mercieca has no cognizable theory, only impermissibly stacked
inferences to support his so-called “secret anti-Mercieca
campaign.”
Mercieca’s brief confirms that he has never had a cognizable retaliation
theory. He relies on a conspiracy theory based entirely on suspicion and stacked
inferences. 8RR211-12. “[A]n inference stacked only on other inferences is not
legally sufficient evidence.” Marathon Corp. v. Pitzner,

106 S.W.3d 724

, 728
(Tex. 2003) (citing Lozano v. Lozano,

52 S.W.3d 141

, 148 (Tex. 2001)).
A claim cannot withstand a legal sufficiency challenge by recourse to
inferences derived “from meager circumstantial evidence.” Wright v. Wal-Mart
Stores, Inc.,

73 S.W.3d 552

, 555 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
“[A] vital fact may not be established by piling inference upon inference.”
Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp.,

435 S.W.2d 854

,
858 (Tex. 1968). Evidence that is “‘so weak as to do no more than create a mere
surmise or suspicion’” of its existence is, in legal effect, no evidence. Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. and Research Corp.,

299 S.W.3d 106

,
115 (Tex. 2009) (citation omitted). “‘[S]ome suspicion linked to other suspicion
produces only more suspicion, which is not the same as some evidence.’”

Marathon, 106 S.W.3d at 728

(citations omitted). Mercieca’s evidence equates to
nothing more than what the cases describe as “mere surmise or suspicion.” T.O.
Stanley Boot Co. v. Bank of El Paso,

847 S.W.2d 218

, 222 (Tex. 1992).
26
One aspect of Mercieca’s disparate retaliation theories has been consistent:
he believes that his managers listened to Rummel’s concerns about him and then
later “encouraged” her to “revive” those concerns by going to HR after he
submitted his April 2010 HR complaint objecting to his managers’ failure to
“consult” with him about Rummel’s concerns first.           8RR252; 8RR257-58;
11RR70-76.     He has repeatedly characterized Rummel’s concerns as a “false
sexual harassment” complaint. For instance, in Mercieca’s statement of the case,
he describes his retaliation claim this way: “Microsoft retaliated against him …
[and] caused or encouraged another Microsoft employee to file a false sexual
harassment charge against him.” Appellee’s Br. at 1; see also CRS6-10; TAB H
¶53 (alleging a “campaign of retaliation against” him).
Even if such a theory could form the basis of actionable retaliation, no
evidence, only rank speculation, supports Mercieca’s theory that some “secret anti-
Mercieca campaign” was launched against him through Tracy Rummel.
Appellee’s Br. at 36. There is no evidence that anyone “caused or encouraged”
Rummel to complain about Mercieca. 4RR150-51.
Moreover, there is no evidence that Rummel ever filed a “false sexual
harassment charge.” The uncontested evidence shows that, starting in November
2009, Rummel spoke to various Microsoft personnel about her concerns. She
spoke to Mercieca directly about her concerns. Then, after she joined Microsoft as
a full-time employee, Rummel experienced repercussions from having told
27
Mercieca about her concerns, including being removed from an account that she
worked on with him. Therefore, she took these concerns to an HR director.
9RR201; 16RR:P25-A; 4RR95-106; TAB F. The HR intake form that resulted
does not support an inference that Rummel had been “encouraged” to bring
“sexual harassment” allegations against Mercieca, as he suggests. The intake form
notes the same issues Rummel had raised a few months earlier: that Mercieca had
tried to diminish her in front of a client by suggesting that she and he were dating
and by making inappropriate comments that were sexual in nature. TAB F. The
form also notes her new concern that, a few days after she spoke to Mercieca, a
Microsoft business partner asked that she be removed from his account.

Id. Mercieca cites

nothing in the record to support the contention that Rummel’s
statements, as recorded by HR, were actually false. For instance, when Rummel
called Mercieca to discuss her concerns about comments he had made at a client
dinner, Mercieca threatened to “circle back” to those who had attended the event.
9RR57; 16RR:P25-A. Mercieca followed through on his threat; and the client
representative to whom Mercieca “circled back” was Jason von Cordsen of Bass
Computers. Von Cordsen, called by Mercieca at trial as a witness, admitted that
nine days after the client event in question, he declared publicly at a Microsoft-
sponsored meeting that he was not “getting any value” from Rummel so he wanted
her taken off the account she was working on with Mercieca. 10RR84-86. In light
28
of this testimony,9 Mercieca has no basis for suggesting that Rummel’s statement,
as reported on the HR intake form, was false:
TAB F.
Mercieca also admitted at trial that he had invited Rummel—a young, single
woman—to stay at his house when she was in town and that he had made
comments at a client dinner that made her uncomfortable, as the HR intake form
states.       Compare

id. with 8RR45-46,

9RR32, 4RR86-90.              Indeed, the partial
recording he secretly made of his conversation with Rummel shows that he knew
he had said things at a client dinner, for instance, about “playing guitar in [her]
bedroom,” that had caused her concern. 4RR87.
The “evidence” Mercieca offered to buttress his suspicion that Rummel was
put up to making a complaint against him is no evidence at all: (1) a cell phone
record showing that Rummel, a Microsoft employee, called Aulds, a Microsoft
manager in Rummel’s division, at various times, including the day that Rummel
9
Von Cordsen also admitted that he was told about the confidential HR complaints
brought by and about Mercieca and that his sole source of information about these internal HR
matters was Mercieca himself. 10RR123-124.
29
followed-up with HR about Mercieca (PX243); and (2) an indemnification
agreement that Microsoft executed with Rummel after Mercieca sued her (PX245).
Appellee’s Br. at 12, 16.10         A “secret anti-Mercieca campaign” (let alone
actionable retaliation) cannot reasonably be inferred from this evidence.

Marathon, 106 S.W.3d at 728

(reminding that suspicion “is not the same as some
evidence”).
These efforts to spin a conspiracy out of stacked inferences epitomizes the
concerns described in the seminal legal sufficiency case City of Keller v. Wilson,

168 S.W.3d 802

, 813-14 (Tex. 2005). In Keller, the Texas Supreme Court used, as
an example, evidence that a macaroni salad was spilled on a grocery store’s floor.
The court considered whether that fact could be used to support an inference that
the grocery store was on notice of the spill: “one might infer from cart tracks in
spilled macaroni salad that it had been on the floor a long time, but one might also
infer the opposite—that a sloppy shopper recently did both.”

Id. at 814.

As the
court explained, the competing inferences negate each other and amount to no
evidence: “When the circumstances are equally consistent with either of two facts,
neither may be inferred.”

Id. at 813.

Rummel and Aulds independently denied talking about Rummel’s complaint
against Mercieca after Rummel first sought guidance from Aulds in November
10
The Appellee’s brief only mentions the indemnification agreement, which was
improperly admitted, in passing, but the agreement was a focal point for Mercieca at trial.
4RR157; 4RR276-78; 12RR106-107; 12RR112-133.
30
2009 and Aulds referred Rummel to HR. 4RR150-51; 11RR74.                   Moreover,
Mercieca admitted that he had no evidence that his complaints were “leaked” to
Aulds or Rummel to help prepare a complaint against him. 9RR38. Even if the
jury disregarded Rummel’s testimony about why she went back to HR when she
did, that would “[n]ormally . . . not [be] considered a sufficient basis for drawing a
contrary conclusion.” Mathis v. Lockwood,

166 S.W.3d 743

, 745 (Tex. 2005)
(quoting Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485

, 512 (1984)).
Rummel, like Mercieca, had a right to go to HR about her concerns under the
company’s open-door policy.       18RR:MSFT235B; 11RR227-229.            There is no
evidence showing that Microsoft would have done anything differently but for
Mercieca’s internal HR complaints. See

Chandler, 376 S.W.3d at 823

(finding no
evidence of but-for causation to support a retaliation claim).
II.   ALTERNATIVELY, MERCIECA’S DAMAGES EVIDENCE IS SO TAINTED THAT
THE ONLY REMEDY IS TO REVERSE AND RENDER JUDGMENT FOR
MICROSOFT.
The damages problems in this case, should the Court reach them, are so
fundamental as to warrant a reversal and rendering of judgment in Microsoft’s
favor. See Houston Unlimited, Inc. v Mel Acres Ranch,

443 S.W.3d 820

(Tex.
2014) (finding damages evidence legally insufficient and reversing and rendering a
take-nothing judgment in the defendant’s favor).
31
A. The Back-Pay Award Is Unsustainable.
Back pay, as Mercieca acknowledges, may be awarded by a district court
under the TCHRA to compensate for a “prohibited employment action.”
Appellee’s Br. at 38. Here, there was no prohibited employment action, so no
back-pay award was proper. Moreover, the court had no discretion to make this
$623,065 award based on a jury finding that utterly ignored the instruction to
account for Mercieca’s failure to mitigate his damages. Mercieca’s only response
is that he had no duty to mitigate his damages while still employed by Microsoft.
Appellee’s Br. at 41. This is correct—a fortiori, he cannot, as a matter of law or
equity, recover for a claim alleging a “constructive discharge” brought when he
was still gainfully employed by Microsoft.      Additionally, Mercieca cites no
evidence of any job search other than Mercieca’s unsubstantiated testimony that he
looked at “a great many” job prospects.

Id. at 41-42.

He cannot cite anything
specific because no evidence of any job applications exists.       “A conclusory
statement is one that does not provide the underlying facts to support the
conclusion.” Methodist Hosp. v. Zurich Am. Ins. Co.,

329 S.W.3d 510

, 530 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied). And a conclusory statement does
not even create a fact issue.

Id. B. The

Compensatory Damages Award Is Unsustainable.
The compensatory damages award (of $300,000) is based on two jury
findings devoid of evidentiary support: a finding of $1,000,000 in mental anguish
32
damages and $9,999,999.24 in punitive damages. The capped amount, although
well below what the jury awarded,11 cannot stand because no evidence supports it.
Mercieca incorrectly insists that the jury was free to make whatever mental
anguish award it liked since the charge did not define the term. Appellee’s Br. at
42. For this proposition he cites Jefferson Cnty v. Davis,

2014 WL 4262184

(Tex.
App.—Houston [14th Dist.] Aug. 28, 2014, pet. filed) (mem. op.). This citation is
an odd choice as the case resulted in zeroing-out a $500,000 mental anguish award.

Id. at *9-*10.

The more apt authority is Seminole Pipeline Co. v. Broad Leaf Partners,
Inc.,

979 S.W.2d 730

, 753 (Tex. App.—Houston [14th Dist.] 1998, no pet.), in
which this Court noted that “[e]motional distress is a subjective injury that is hard
to predict, often speculative, easily fabricated, difficult to verify, and almost
impossible to refute.” These pitfalls are precisely why the Supreme Court has
taken pains “to fashion principles permitting recovery for severe emotional distress
while maintaining constraints and safeguards against those who are merely
disappointed, embarrassed, or angry.”

Id. Mercieca’s alleged

distress does not
satisfy the standard because “liability does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities[.]”

Id. at 753-54.

11
Mercieca’s counsel invited error by urging the jury to award $1,000,000 in mental
anguish and “ten million or more” in punitive damages knowing full well that this was a capped
case. 12RR125; 12RR131.
33
Mercieca expressed his view that his experience at Microsoft was “soul
destroying,” and his brief, citing his own testimony as evidence, states that he
“now suffers from depression, for which he takes medication, and his sleep is
erratic.” Appellee’s Br. at 44. Yet his personal therapist/expert acknowledged at
trial that the only mental disorder with which Mercieca had been diagnosed,
starting in 2003, was “adjustment disorder,” not depression, for which he was
prescribed Lexapro, an anti-depressant, which he first took in 2001 after his
divorce. 9RR110-118; 9RR15. This diagnosis—which was consistent through
2011—was made over a decade before his alleged “constructive discharge.”

Id. Additionally, the

“stressors” to which Mercieca’s therapist attributed his condition
were, initially, a dysfunctional sexual relationship and then a child-custody dispute
with his ex-wife that had required police intervention and resulted in Mercieca
being placed in handcuffs.

Id. Mercieca’s therapist’s

testimony established
uncontrovertibly that Mercieca’s mental-health issues began years before Rummel
raised concerns about his conduct in November 2009. As Mercieca’s brief states,
“the Bass Computers function” in November 2009 was “the event that started it
all” with respect to his grievances against Microsoft. Appellee’s Br. at 13. His
long-standing mental distress, which predates the Bass Computers event by over
six years, cannot be evidence of compensable “mental anguish damages” that
resulted from a constructive discharge that he claims occurred two years
thereafter. TAB A, Question 14.
34
Moreover, to support an award of mental anguish damages, “[t]here must be
both evidence of the existence of compensable mental anguish damages and
evidence to justify the amount awarded.” Hancock v. Variyam,