Marquez v. Voicestream Wireless

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2 The TCHRA provides for the enforcement of the policies of
Title VII of the Civil Rights Act of 1964, so “analogous federal
statutes and the cases interpreting them” inform the interpretation
of the Texas statute. Quantum Chem. Corp. v. Toennies, 47 S.W. 3d
United States Court of Appeals
Fifth Circuit
F I L E D
November 24, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04-50298
Summary Calendar
_____________________
NORMA MARQUEZ,
Plaintiff - Appellant,
versus
VOICESTREAM WIRELESS CORPORATION,
Defendant - Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CV-551-DB
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:1
I
Norma Marquez filed suit against her former employer,
Voicestream Wireless Corporation (Voicestream), arising out of its
termination of her employment. Marquez asserted a claim of quid
pro quo sexual harassment and a claim of retaliation, all under the
Texas Commission on Human Rights Act2, Texas Labor Code § 21.051.3

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473, 476 (Tex. 2001).
3 An employer commits an unlawful employment
practice if because of race, color,
disability, religion, sex, national origin, or
age the employer:
(1) fails or refuses to hire an individual,
discharges an individual, or discriminates in
any other manner against an individual in
connection with compensation or the terms,
conditions, or privileges of employment; or
(2) limits, segregates, or classifies an
employee or applicant for employment in a
manner that would deprive or tend to deprive
an individual of any employment opportunity or
adversely affect in any other manner the
status of an employee.
Tex. Lab. Code Ann. § 21.051 (Vernon 1996).
2
Marquez first claims that she was fired because she refused
the invitations of her supervisor, Robert Thomas, to have drinks
after work and, secondly, she claims her discharge was also
retaliation for reporting these invitations to Rachel Brock, an
office manager for Voicestream.
In its motion for summary judgment, Voicestream contended that
Marquez failed even to establish a prima facie case of sexual
harassment and retaliation. Additionally, it submitted evidence
that Marquez was fired because she failed to meet the minimum
requirements outlined in Voicestream’s Retail Sales Management
Minimum Expectations Policy (“RSMMEP”).
With respect to the sexual harassment claim, the district
court granted the motion for summary judgment because Marquez

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3
failed to present evidence of unwelcome sexual harassment, one of
the five elements of a prima facie case for quid pro quo sexual
harassment. It also held that even if Marquez had been successful
in making a prima facie case for sexual harassment, she failed to
rebut Voicestream’s proffered, nondiscriminatory motive for
terminating her employment.
The district court also granted summary judgment on Marquez’s
retaliation claim after finding that Marquez did not make a prima
facie case for retaliation because she failed to produce evidence
that would support a good faith, objectively reasonable belief that
she had been subjected to unlawful activity. Moreover, the
district court found that she failed to establish a causal
connection between her alleged protected activity (her phone
conversations with Brock reporting her contact with Thomas) and the
termination of her employment because she did not show that the
ultimate decision-makers involved in her firing were aware of those
conversations. Thus, the district court dismissed the complaint in
its entirety.
II
On appeal, Marquez argues that she made a prima facie case for
sexual harassment and retaliation. Furthermore, she contends that
she successfully rebutted Voicestream’s nondiscriminatory reason
for terminating her employment.

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4 In her deposition, Marquez initially indicated that she did
not view Thomas’s invitations as a request for a date, but she
later said that she did consider them as sexual in nature and as
invitations for a date.
4
Marquez contends that she presented evidence showing that she
was subjected to “unwelcome sexual harassment.” She argues that
Thomas’s two invitations to have drinks with him were sexual in
nature, and that they constituted the requisite unwelcome sexual
conduct.4
We have defined “unwelcome sexual harassment” as “sexual
advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature that is unwelcome in the sense that it
is unsolicited or unincited and is undesirable or offensive to the
employee.” Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th
Cir. 1989). Thus, in Ellert v. Univ. of Texas at Dallas, we found
no sexual harassment where there was no evidence that the alleged
harasser discussed sexual matters, initiated any physical contact,
or made any threats or promises conditioned on the plaintiff’s
response to his advances. 52 F.3d 543, 545 (5th Cir. 1995).
Similarly, Thomas did not make any overt sexual advances, did not
request any sexual favors, did not engage in any verbal or physical
conduct that was sexual in nature, and, after Marquez declined his
second invitation, Thomas did not extend subsequent similar
invitations to her. We therefore agree with the district court
that Marquez has failed to show evidence of unwelcome sexual
harassment on the part of Thomas.

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5 The RSMMEP section entitled “Operational Discipline” reads:
“If a score of at least 85% is not achieved during either of the
two follow-up audits, the manager will be subject to disciplinary
action, up to and including termination.”
5
Although that should end the point, we will take time to
address Marquez’s contention that she presented evidence that
Voicestream’s stated reason for terminating her employment was
pretextual. She accurately notes that the RSMMEP does not mandate
termination for managers who score below 75% on the first audit and
below 85% on the second audit. The RSMMEP provides that managers
whose scores do not meet the minimum requirements may be subject to
disciplinary action, which may include termination. Marquez cites
the fact that no other managers have been subjected to termination
for failing to meet the minimum requirements. This evidence,
however, ultimately fails to show that she was treated differently;
she presented no evidence that any manager, except herself, had
failed to achieve the required scores.
Marquez further contends that the RSMMEP provides that only a
manager who scores less than 85% on two re-audits may be terminated
and that her termination after only one re-audit is evidence of
discrimination. Voicestream disputes her interpretation of the
RSMMEP, arguing that the RSMMEP allows for termination after only
one re-audit.5 Regardless of Marquez’s understanding of
Voicestream’s disciplinary policy, she was warned by her supervisor
at the time that if she failed to score at least 85% on her re-
audit, she could be subject to termination. She does not dispute

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6 She scored 64% on the initial audit and 83% on the re-audit.
6
the accuracy of the scores.6 Because she does not show that she
was treated differently from similarly situated managers, and
because she knew that she could be fired if she scored less than
85%, Marquez did not present evidence of pretext sufficient to
raise a genuine issue of material fact concerning the pretextual
nature of Voicestream’s proffered reason for terminating her
employment. Therefore, even if Marquez could be said to have made
a prima facie case, the district court’s granting of Voicestream’s
motion for summary judgment would have been proper because her
evidence fails to show that the stated reason for her discharge was
pretext.
Next, we turn to the grant of summary judgment on the
retaliation claim. To make a prima facie case for retaliation,
Marquez must produce evidence that she engaged in activity
protected under Title VII, suffered an adverse employment action,
and that there is a causal connection between the Title VII
protected activity and the adverse employment action. Gee v.
Principi, 289 F.3d 342, 345 (5th Cir. 2002).
We need only address whether Marquez produced evidence that
she engaged in protected activity. In doing so, we find that
Marquez has failed to make a prima facie retaliation claim because
her phone conversations with Brock in which she described Thomas’s

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conduct do not constitute protected activity. Brock was an office
manager in Albuquerque, New Mexico and was responsible for
compiling sales and inventory data from all of the New Mexico and
El Paso stores. The phone conversations relied on by Marquez were
initiated by Brock—not by Marquez—and occurred in the routine
course of compiling this data. There is no evidence that Marquez
alleged any unlawful activity (sexual harassment) on Thomas’s part
during these conversations. Marquez only mentioned that Thomas had
asked her to go out for a drink on two occasions. There is nothing
in the record that she protested or objected that these invitations
were sexual harassment or otherwise unwelcomed. Without an
allegation that she reported unlawful activity (even assuming Brock
to be an appropriate person to receive such a report) Marquez’
conversations with Brock were not protected activity. See Watts v.
Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999).
We have examined the briefs, the record, and the district
court’s opinion, and we find no reversible error in its legal
analysis or in its application of that analysis to the facts of
this case. Therefore, for the above reasons the judgment of the
district court is in all respects
AFFIRMED.

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