holding that even assuming respondent established a prima facia case of retaliation based on her termination, petitioner presented evidence sufficient to rebut any such presumptionSummary of this case from Toldson v. Denton Indep. Sch. Dist.
Jonathan G. Brush, Rogers, Morris & Grover, L.L.P., Houston TX, for Amicus Curiae. Robert Allen Schulman, Bryan P. Dahlberg, Schulman, Lopez, Hoffer & Adelstein, LLP, San Antonio TX, for Petitioner. Brendan K. McBride, The McBride Law Firm, Matthew R. Pearson, Tracie Gee Conner, Gravely & Pearson, L.L.P., San Antonio TX, for Respondent.
Jonathan G. Brush, Rogers, Morris & Grover, L.L.P., Houston TX, for Amicus Curiae.
Robert Allen Schulman, Bryan P. Dahlberg, Schulman, Lopez, Hoffer & Adelstein, LLP, San Antonio TX, for Petitioner.
Brendan K. McBride, The McBride Law Firm, Matthew R. Pearson, Tracie Gee Conner, Gravely & Pearson, L.L.P., San Antonio TX, for Respondent.
Justice Guzman delivered the opinion of the Court, joined by Chief Justice Hecht, Justice Green, Justice Johnson, Justice Devine, and Justice Brown.
Eva M. Guzman, Justice Workplace discrimination and harassment cases are some of the most sensitive and difficult to resolve. The conduct complained about in these types of cases is often so offensive that "it is easy to understand that a sense of decency initially inclines one to want to grant relief." But anti-discrimination laws target "discrimination in the workplace, not morality or vulgarity." An employer's liability is determined by the statute the Legislature enacted, not well-meaning judges. "The text is the law, and it is the text that must be observed."
EEOC v. Harbert–Yeargin, Inc. , 266 F.3d 498, 519 (6th Cir. 2001) (Guy, J., concurring in part and dissenting in part).
Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 22 (1997).
This discrimination and retaliation suit involves allegations of same-sex harassment and bullying by female coaches in the girls athletic department at a San Antonio middle school. The ultimate issue on appeal—the school district's immunity from suit—is subsumed in two predicate evidentiary matters concerning the governmental-immunity waiver in the Texas Commission on Human Rights Act (TCHRA). The TCHRA waives immunity from suit only for statutory violations, which means the trial court lacks subject-matter jurisdiction over the dispute absent some evidence the school district violated the TCHRA. By intertwining the TCHRA's immunity waiver with the merits of a statutory claim, the Legislature ensures public funds are not expended defending claims lacking sufficient evidence to allow reasonable jurors to find the governmental entity liable. The main issues in this case are (1) whether the evidence raises an inference of gender-motivated discrimination and (2) whether the complainant must produce evidence to support her retaliation claim when no presumption of unlawful retaliation exists under the McDonnell Douglas burden-shifting framework. The latter inquiry is a question of first impression for the Court.
See Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 635–37 (Tex. 2012) ("[T]he Labor Code waives immunity from suit only when the plaintiff actually states a claim for conduct that would violate the TCHRA.").
Sexual harassment is a form of sex-based discrimination and, as such, requires proof that the alleged mistreatment was "because of" the employee's gender. Anti-discrimination laws—in their current incarnation—do not guarantee a pleasant working environment devoid of profanity, off-color jokes, teasing, or even bullying. In this case, the record—viewed as favorably as the legal-sufficiency standard allows—bears no evidence that the inappropriate conduct alleged here was gender motivated.
A retaliation claim is related to, but distinct from, a discrimination claim, and one may be viable even when the other is not. Unlike a discrimination claim, a retaliation claim focuses on the employer's response to an employee's protected activity, such as making a discrimination complaint. The TCHRA's prohibition against retaliation does not protect employees from all ostracism, discipline, or even termination following a discrimination complaint. Rather, a remedy exists only when the evidence establishes that a materially adverse employment action resulted from the employee's protected activities.
Because retaliatory intent is rarely overt, the tripartite McDonnell Douglas burden-shifting framework provides a mechanism to support a retaliation claim with circumstantial evidence. In this case, the parties dispute which facets of the burden-shifting framework constitute jurisdictional facts for purposes of the TCHRA's immunity waiver. The court of appeals limited the jurisdictional inquiry to the first step—the prima-facie-case element—even though the jurisdictional evidence neutralized the presumption it provides. This was error. Consistent with our analysis in Mission Consolidated Independent School District v. Garcia , we hold that when jurisdictional evidence negates the prima facie case or, as in this case, rebuts the presumption it affords, some evidence raising a fact issue on retaliatory intent is required to survive a jurisdictional plea. Such evidence is lacking here.
The U.S. Supreme Court established a burden-shifting evidentiary framework in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for circumstantial-evidence cases brought under Title VII of the Civil Rights Act of 1964. We consistently look to federal law to inform our construction and application of the TCHRA because one of its purposes is to "provide for the execution of the policies of Title VII." Garcia , 372 S.W.3d at 633–34 (quoting Tex. Lab. Code § 21.001(1) ).
We reverse the court of appeals' judgment and render judgment dismissing the employee's TCHRA claims.
A. The 2007–08 school year
In the summer of 2007, Alamo Heights Independent School District (Alamo Heights) hired Catherine Clark as a coach and physical education teacher in the girls athletic department at Alamo Heights Junior School. Clark's tenure at the school got off to a seemingly successful start. In a mid-year "Observation Summary," the middle school principal, Stephanie Kershner, gave Clark the highest possible score of "exceeds" in a subset of evaluative criteria. A few months later, in March 2008, Principal Kershner completed Clark's "Summative Annual Appraisal," carrying forward her "exceeds" ratings from the observation review. In categories that had not previously been evaluated, Kershner gave Clark an "exceeds" rating for "professional development," and the next lower rating of "proficient" for "professional communication," "compliance with policies, operating procedures, and requirements," and "improvement of academic performance of all students."
The school's "Professional Development and Appraisal System" includes eight overarching domains of assessment with a variety of individually graded metrics within each one. Clark's mid-year evaluation covered only half the available domains.
As part of the summative appraisal conference, Principal Kershner addressed two particular matters of concern with Clark: (1) co-worker reports that Clark was bringing her young children to school during instructional hours, which she acknowledged, and (2) a student's report that Clark and Ann Monterrubio, another newly hired female coach in the girls athletic department, were not "getting along." Kershner directed Clark not to bring her children to work in the future, noting constant supervision was required due to their age. Kershner further recommended the two coaches meet with the school counselor, to which Clark assented, and advised Clark to report any problems. In Clark's written summative appraisal, Kershner identified "communicat[ion] with the girls athletic coordinator and administrators" as a professional skill that Clark needed to improve.
Two months later, around mid–May, an emotionally distraught Clark visited Principal Kershner's office to complain about Monterrubio's behavior. Clark was unable to communicate effectively due to her highly charged emotional state, so Kershner secured a substitute teacher to cover Clark's afternoon classes and allowed her to leave work to collect herself and prepare a written report.
Without explanation, Clark missed the next two days of school, and on her return, she submitted a thirteen-page typed letter detailing a litany of complaints against Monterrubio, extending as far back as the start of the school year (the May 14 letter). She reported that Monterrubio bullied and harassed her on a daily basis; she had reported the objectionable conduct to the girls athletic department coordinator, Michelle Boyer; and Boyer personally observed many bullying and harassing incidents but did nothing to stop Monterrubio. Clark explained that she decided to file a formal complaint following a conversation among Clark, Monterrubio, and Boyer during which Clark complained to Boyer about Monterrubio's behavior, such as interrupting her, criticizing her parenting, being disrespectful to students, not doing what she is supposed to be doing, and talking to other people about topics that bothered Clark. Clark "had finally had enough" when Monterrubio stated that Monterrubio goes to the bathroom to talk on the phone to friends and that Boyer "probably thinks she's just taking a great big sh--." Clark further explained she was "just now reporting this" because she feared retaliation and had expected Boyer and the school counselor to stop Monterrubio's bullying.
Among the more than four dozen incidents Clark catalogued, a handful that occurred months apart during the school year involved comments Monterrubio allegedly made about female body parts, including Clark's breasts and buttocks. Clark also complained that Monterrubio frequently used vulgar language, often with sexual connotations, that was sometimes directed at her. According to Clark:
• Early in the school year, Monterrubio said, "Wow, Coach Clark, I think your boobs are going to pop out of your shirt!", told Clark that her thong underwear and the "dimples" on her buttocks were visible when she wore certain pants, and "talk[ed] about" her bottom and breasts throughout that week.
• Several weeks later, Monterrubio told Clark the male coaches were betting that her breasts were fake and that Monterrubio had agreed with that assessment.
• After Monterrubio received a candle Clark brought to the coaches' holiday gift exchange, Monterrubio stated "she was going to make love next to the candle when it was lit up in her apartment."
• At the end of January, Monterrubio warned Clark to step back from a pizza box to avoid getting pizza sauce on her "enormous" breasts.
• Near the end of the school year, Monterrubio reportedly made a remark about Clark needing to close her
legs when a student mentioned smelling the shrimp Clark was eating for lunch.
The record bears two versions of the May 14 letter—a signed version Clark gave Kershner and an unsigned version Clark attached to her EEOC complaint and described as being "similar" to the one she submitted to Kershner. The unsigned version contains additional allegations and numerous details that deviate in material respects from the signed version. Except as otherwise indicated, for purposes of this appeal, we consider the more expansive version of the letter.
• At the new-teacher orientation in August, Monterrubio repeatedly questioned whether an assistant principal's breasts were real to the point that Clark thought it might be dangerous to have such a person in the girls locker room.
• Regarding the above-mentioned candle incident, Monterrubio reportedly also said, "I will think of you next time I am f---ing."
• After returning from spring break, Monterrubio once commented on "how tan [Clark's] chest was."
• Though Monterrubio knew Clark was married, she suggested Clark and a male coach would make a good couple and should "hook up." And "knowing it would upset" Clark, Monterrubio made similar statements twice more the same week.
Clark was also offended by Monterrubio discussing her own sex life, such as telling all the coaches about a sexual escapade involving three men in three nights, displaying a photo of her boyfriend's genitals, and looking at a picture of a naked man on the beach. Starting around Christmas and extending through February, Monterrubio had also forwarded a series of ten emails to various groups of people, including Clark, and some of the messages contained mildly profane or vulgar holiday-inspired cartoons or jokes, among others.
Clark recounted she was particularly upset by Monterrubio's and Boyer's conduct at the faculty Christmas party. According to Clark, Monterrubio and Boyer purchased "indecent ornament[s]" for themselves and Clark to take to the holiday gift exchange, but Clark refused to take one of the ornaments to the party because she feared getting into trouble. Clark also complained that, at the party, Monterrubio and Boyer became intoxicated and engaged in inappropriate activities, such as clanging beer bottles during the prayer, "extremely dirty dancing," and "grabbing their private areas of their bodies for photographs next to the Christmas tree." Though not mentioned in either version of the May 14 letter, Clark later testified in her deposition that Monterrubio and Boyer similarly grabbed Clark's behind once during a group photo.
The multitude of other incidents Clark described in the letter are not remotely sexual in nature. Clark complained Monterrubio brushed shoulders with her a couple of times while they were passing in a doorway and bumped her once with a box. Clark's concerns mostly involved Monterrubio doing things like swearing, snapping at her, making rude comments to Clark's daughter when she brought the child to work, reading her papers, instructing her to use a different printer, teasing her for getting a spray tan, criticizing her teaching and parenting skills, and discussing atheism and abortion with a roomful of coaches.Clark detailed not only personal mistreatment but also many instances of inappropriate behavior toward students and parents. Clark said the other coaches, both male and female, heard Monterrubio's dirty jokes and sexual comments, and Monterrubio mistreated them as well, talking about them behind their backs, making fun of them, and insulting them "on a daily basis."
Though Clark stated Monterrubio regularly bullied, harassed, embarrassed, and offended her, she never alleged Monterrubio did so because she is a woman. To the contrary, Clark discussed other motives for this behavior unrelated to gender. Monterrubio told Clark several times that Clark "should just be a stay-at-home Alamo Heights Mom," while "constantly" insulting those mothers as being "smug, wealthy and snotty." Clark complained that the presence of other employees' children at school did not seem to be a problem, but Monterrubio did not like children in general and Clark's in particular because they annoyed her when she brought them into work. And, Monterrubio frequently criticized Clark's parenting style. Clark later elaborated that Monterrubio did not like her, calling Clark a "snob" who acted "high and mighty" and whose children were "Trust–Fund babies." Clark believed Monterrubio was "jealous" of her and intentionally did things "to upset her" because she "enjoy[ed] getting a rise" from her.
Principal Kershner did not report Clark's complaint to district officials. Rather, Kershner investigated Clark's complaint on her own and issued a written response on May 23. "I currently have no evidence supporting the details of your experiences and or perceptions," Kershner wrote. She urged Clark to be proactive in communicating complaints in a timely manner and, once again, counseled her about bringing her children to work during instructional hours.
B. The 2008–09 school year
As the new school year began, Kershner kept a close eye on the girls athletic department. In an effort to facilitate communication and resolve lingering tensions within the department, Kershner implemented weekly meetings with herself, Clark, Monterrubio, Boyer, and the athletic director. On occasion, Clark would make vague reference to additional upsetting incidents but did not discuss the particulars because her May complaint had been "swept under the rug." In addition to the departmental meetings, Kershner and the athletic director had separate meetings with Clark about her job performance, reports that she secretly recorded conversations with her co-workers, and her continuing to bring her children to work.
Despite these ongoing meetings, concerns persisted. Principal Kershner consulted with Dr. Dana Bashara, the school district's human resources director, about a path forward. Bashara and Kershner decided both Monterrubio and Clark should be placed on an employee growth plan. Kershner and Bashara met on October 9, 2008, for the express purpose of preparing Clark's growth plan. The plan, which was presented to Clark on October 29, required weekly meetings with Boyer, "in an effort to promote professional communication" and stated Boyer would submit meeting notes to Kershner to demonstrate Clark's improved communication. At the same time, Kershner placed Monterrubio on a similar growth plan.
Meanwhile, in mid–October, after the growth-plan decision was made but before its implementation, Clark filed a charge of discrimination with the EEOC, alleging Monterrubio and Boyer sexually harassed her and, after she complained, the school district and her supervisors retaliated against her by (1) singling her out for workplace restrictions, (2) ostracizing her, and (3) being unjustly critical of her work performance. Clark also claimed Boyer was aware of Monterrubio's comments about her body, took no action to stop Monterrubio, and instead "began to make sexual comments" herself.
The record contains no additional details regarding any "sexual comments" to her by Boyer, but Clark alleges Monterrubio made several sex-related comments at some unspecified point during the 2008–09 school year:
• Monterrubio continued to make unspecified comments about Clark's breasts and buttocks and told Clark that she used Clark's razor to shave her genitals.
• Monterrubio and Boyer discussed fellatio while eating eggrolls.
• Monterrubio called across the room to Boyer, in Clark's presence, "I wonder if Coach Clark swallows."
• Monterrubio told a story about having sex after barhopping and made jokes about Viagra.
In January and February 2009, Clark submitted three letters to Kershner detailing more than forty additional complaints against Monterrubio, Boyer, other coaches, and Kershner herself. With the exception of saying that Monterrubio had once stared at her bottom, none of those complaints related to sex in any way but instead were claimed acts of retaliation for asserting a sexual-harassment complaint. Clark was upset about various perceived slights by the other coaches, such as hidden keys, thrown-away printouts, being excluded from breakfast tacos, loud music in the office, cold shoulders, dirty looks, and being snapped at and locked out of the gym. According to Clark, Kershner was rude to her in meetings and unfairly reprimanded her for continuing to bring her children to work.
Shortly after submitting the last of these three complaints, Clark requested and was granted leave under the Family and Medical Leave Act (FMLA). Meanwhile, Kershner investigated Clark's complaints and, when Clark returned, issued a written response concluding (1) no evidence of retaliation existed and (2) Clark was responsible for any difficulties with her co-workers. Kershner reminded Clark, as per her growth plan, she must make efforts to improve working relationships with her colleagues or she risked termination.
See 29 U.S.C. §§ 2601 –2654.
By all accounts, the department ran smoothly during Clark's leave, but almost immediately upon her return, discord again broke out. Within a week, Clark filed a formal grievance, accusing Monterrubio of pushing Clark from behind during class. She requested, as her grievance remedy, that either she or Monterrubio be transferred.
In addition to the pushing complaint, Clark stated in her grievance that she was afraid of Monterrubio because of her daily bullying. When Kershner inquired about this comment, Clark responded with nearly thirty more allegations against Monterrubio and to some extent Boyer, similar to those reported in January and February, such as snapping, profanity, teasing, door slamming, shoulder bumping, and her car antennae being removed. Clark also accused Monterrubio of chasing her in her car. She made sweeping allegations about Monterrubio's daily mistreatment of practically everyone, including "students, parents, and teachers," and that she "enjoys teasing students and staff and causing trouble."After investigating Clark's pushing grievance and related new allegations, Kershner determined the grievance had no merit but nevertheless transferred Monterrubio in hopes of restoring order to the department. This effort failed. Even with Monterrubio gone, Clark's performance continued to suffer, her conflicts with co-workers intensified, and she continued to complain of perceived slights. Clark also admitted to lying about an incident involving a violation of state standardized-testing protocols.
Because of these issues, Principal Kershner recommended to the superintendent that Clark be placed on paid administrative leave while the district investigated and evaluated the situation. Kershner brought in Bashara to run the investigation, and Bashara discovered and verified many additional performance issues. For example, the substitute teacher covering Clark's classes during her FMLA leave reported that Clark had not been following lesson plans or maintaining daily grades, as required by campus policy. The other coaches reported Clark had been neglecting her coaching duties, such as by being on her office computer during practice, and had twice again brought her daughter to school during instructional time.
Citing these new issues, along with Clark's role in disrupting the department, the standardized-testing incident, and failure to comply with her growth plan, Principal Kershner gave Clark a markedly poorer summative evaluation and recommended to the superintendent that Clark be terminated for cause.
In July 2009, the Alamo Heights School Board issued a Notice of Proposed termination that included nineteen specific instances of conduct supporting good cause for termination. Although Clark was entitled to an evidentiary due process hearing before an independent hearing examiner, she never contested the grounds for termination or requested a hearing, and she was fired in August 2009.
Clark sued Alamo Heights, asserting sexual-harassment and retaliation claims under the TCHRA. After discovery, Alamo Heights filed a plea to the jurisdiction, arguing the TCHRA's governmental-immunity waiver does not apply because Clark has no evidence of a statutory violation. Alamo Heights attached proof of Clark's unsatisfactory job performance, noncompliance with the growth plan, and policy violations as legitimate nondiscriminatory reasons for her dismissal. In addition to other alleged evidentiary deficiencies, the school district argued in relevant part that Clark had (1) no evidence the objectionable behavior was gender-based, which is required to state a prima facie case of sexual harassment, and (2) no evidence of a causal link between statutorily protected anti-discrimination activities and a materially adverse employment action.
Tex. Lab. Code §§ 21.001 –.556.
The trial court denied the plea, and on interlocutory appeal, the court of appeals affirmed, holding Clark had established a prima facie case of sexual harassment and retaliation sufficient to invoke the TCHRA's immunity waiver and establish subject-matter jurisdiction over Clark's claims.
2015 WL 6163252, at *6–7 (Tex. App.—San Antonio 2015).
With respect to Clark's sexual-harassment claim, the appellate court held, in pertinent part, that the record contains some evidence the alleged harassment was gender motivated. The court stated that "the bulk of Monterrubio's comments relate to the fact that Clark is female," for example "a significant number of comments to Clark about Clark's female anatomy, i.e., her breasts, as well as her buttocks."
Id. at *5.
With respect to the retaliation claim, the court declined to consider whether Clark produced any evidence that the stated reasons for her termination were merely pretextual, holding that, in circumstantial-evidence cases, the jurisdictional inquiry is limited to the prima-facie-case element of the McDonnell Douglas framework and does not include an evaluation of pretext evidence.
Id. at *6 ("[B]ecause we are reviewing the trial court's denial of AHISD's plea to the jurisdiction, we are limited to reviewing whether Clark has shown a prima facie case for her retaliation claim, and thus do not examine whether Clark has shown pretext.").
The issue on appeal is whether the evidence raises a fact issue sufficient to invoke the TCHRA's immunity waiver as to either of Clark's claims. Subsumed within that overarching inquiry is (1) whether there is more than a scintilla of evidence that Clark was harassed "because of" her gender and (2) whether the jurisdictional facts in a TCHRA circumstantial-evidence case are limited to the prima-facie-case element even if the presumption it raises has been rebutted by evidence attached to the jurisdictional plea. We granted review to resolve a jurisprudential inconsistency regarding which elements of a circumstantial-evidence TCHRA case constitute the jurisdictional facts.
Compare, e.g. , id. ,and Tex. Dep't of State Health Servs. v. Rockwood , 468 S.W.3d 147, 154 (Tex. App.—San Antonio 2015, no pet.), and KIPP, Inc. v. Whitehead , 446 S.W.3d 99, 112–13 (Tex. App.—Houston [1st Dist.] 2014, pet. denied), with Harris Cty. Hosp. Dist. v. Parker , 484 S.W.3d 182, 199–200 (Tex. App.—Houston [14th Dist.] 2015, no pet.), and Tex. State Office of Admin. Hearings v. Birch , No. 04-12-00681-CV, 2013 WL 3874473, at *24 (Tex. App.—San Antonio July 24, 2013, pet. denied) (mem. op.). See also Act of May 29, 1987, 70th Leg., R.S., ch. 1106, § 1, sec. 22.001, 1987 Tex. Gen. Laws 3804, 3804 (amended 2003, 2017) (current version at Tex. Gov't Code § 22.001 ).
A. Standard of Review
Governmental units, including school districts, are immune from suit unless the state consents. The TCHRA waives immunity, but only when the plaintiff states a claim for conduct that actually violates the statute.
Immunity from suit may be asserted through a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment. A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or both. When a jurisdictional plea challenges the pleadings, we determine if the plaintiff has alleged facts affirmatively demonstrating subject-matter jurisdiction. If, however, the plea challenges the existence of jurisdictional facts, we must move beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction and the merits of a claim.
Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000).
Miranda , 133 S.W.3d at 227.
Here, the school district's jurisdictional plea challenged the existence of jurisdictional facts with supporting evidence. In such cases, the standard of review mirrors that of a traditional summary judgment: "[I]f the plaintiffs' factual allegations are challenged with supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction." In determining whether a material fact issue exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. In doing so, however, we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not.
Miranda , 133 S.W.3d at 225–26.
Id. at 221.
Id. at 228.
See City of Keller v. Wilson , 168 S.W.3d 802, 811–12, 822–23, 827 (Tex. 2005).
B. Same–Sex Sexual Harassment
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating in the terms, conditions, and privileges of employment "because of ... sex." In Meritor Savings Bank, FSB v. Vinson , the United States Supreme Court held that Title VII's prohibition of sex discrimination in employment encompasses "the entire spectrum of disparate treatment of men and women in employment," including sexual harassment. The Texas Legislature modeled the TCHRA on Title VII, and we have expressly recognized that the TCHRA prohibits sexual harassment. To prove sexual harassment based on a hostile work environment, the plaintiff must show (1) she was subjected to unwelcome sexual harassment, (2) she was harassed because of her sex, (3) the harassment was so severe or pervasive as to alter the conditions of employment and create a hostile work environment, and (4) some basis for holding the employer liable.
42 U.S.C. § 2000e–2(a)(1). In this opinion, we use the terms "sex" and "gender" interchangeably, as does the Supreme Court. See Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
Nischan v. Stratosphere Quality, LLC , 865 F.3d 922, 928 (7th Cir. 2017).
The dispositive issue on appeal is whether Clark raised a fact issue on the second element, that the offending conduct was based on her gender. Viewing the record in the light most favorable to Clark, her working environment was undoubtedly harassing. But based on Clark's own version of events, which provides vital context that cannot be ignored in a legal-sufficiency review, a jury could not reasonably conclude the alleged harassment was motivated by her gender.
1. Legal Standard for Same–Sex Harassment
In Oncale v. Sundowner Offshore Services, Inc. , the U.S. Supreme Court held Title VII's protection against workplace discrimination "because of ... sex" applies to harassment between members of the same gender. Title VII is not "a general civility code" that protects against "all verbal or physical harassment in the workplace," even when "the words used have sexual content or connotations." The critical issue is whether the conduct at issue constitutes discrimination because of the victim's gender.
Id. at 80, 118 S.Ct. 998.
Though same-sex and opposite-sex harassment cases are rooted in the same statutory prohibition, evidentiary issues naturally differ. How to prove the harasser's conduct is motivated by gender is more complicated in same-sex harassment cases because the inferences that arise from words and conduct are not necessarily the same when the harasser and victim are the same gender. As the Supreme Court made clear in Oncale , the inference of discrimination is "easy to draw" in most opposite-sex cases "because the challenged conduct typically involves explicit or implicit proposals of sexual activity" and thus "it is reasonable to assume those proposals would not have been made to someone of the same sex." That inference does not arise automatically in same-sex cases. However, "[t]he same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual."
In this case, we express no opinion regarding how to resolve a similar case involving a harasser and victim of different genders.
See Davis v. Coastal Int'l Sec., Inc. , 275 F.3d 1119, 1123 (D.C. Cir. 2002) (the because-of-sex element "of a hostile-environment claim presents a plaintiff with serious obstacles where, as here, the perpetrators and plaintiff are of the same sex"); Bibby v. Phila. Coca Cola Bottling Co. , 260 F.3d 257, 262 (3d Cir. 2001) ("The question of how to prove that same-sex harassment is because of sex is not an easy one to answer."); Lack v. Wal–Mart Stores, Inc. , 240 F.3d 255, 260 (4th Cir. 2001) ("[T]he causation element poses an especially formidable obstacle in same-sex harassment cases.").
In addition to motivation by sexual desire, the Oncale Court identified two other methods of proving gender-based animus in same-sex cases—evidence of general hostility to a particular gender in the workplace and direct comparative evidence of the harasser's treatment of both sexes. The Court explained:
[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.
Id. at 80–81, 118 S.Ct. 998.
This discussion of evidentiary methods does not purport to be exclusive, as courts have recognized. But, "[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] ... because of ... sex.’ " Clark has not raised a fact issue that the harassment she alleges was based on her gender, under these three methods or any other.
See , e.g. , EEOC v. Boh Bros. Constr. Co. , 731 F.3d 444, 455–56 (5th Cir. 2013).
2. No Evidence of Sexual–Desire Motivation
Clark asserts a factual dispute exists regarding motivation by sexual desire under Oncale 's first evidentiary route. As a predicate matter, the parties disagree about whether "credible evidence" that the harasser is homosexual is required. Some courts have treated Oncale 's"credible evidence" of homosexuality language as imposing a mandatory requirement of such evidence in every first-route evidentiary case. Other courts have determined this route requires only proof of motivation by sexual desire, which may be shown by any relevant evidence, including—but not limited to—sexual propositions combined with "credible evidence" that the harasser is homosexual. We need not determine which approach is correct because, under either, the evidence is lacking.
Id. at 80, 118 S.Ct. 998.
See, e.g. , Love v. Motiva Enters. LLC , 349 Fed.Appx. 900, 903–04 (5th Cir. 2009) ; McCown v. St. John's Health Sys., Inc. , 349 F.3d 540, 543 (8th Cir. 2003) ; Davis v. Coastal Int'l Sec., Inc. , 275 F.3d 1119, 1123 (D.C. Cir. 2002).
See, e.g. , Dick v. Phone Directories Co. , 397 F.3d 1256, 1264–65 (10th Cir. 2005) ; Pedroza v. Cintas Corp. No. 2 , 397 F.3d 1063, 1069 (8th Cir. 2005) ; Shepherd v. Slater Steels Corp. , 168 F.3d 998, 1010 (7th Cir. 1999).
To begin with, Clark has never alleged—in her written complaints, EEOC charge, or lawsuit—that either Monterrubio or Boyer are homosexual. Nevertheless, we have reviewed the record for such evidence. Oncale requires evidence of homosexuality to be "credible." The Fifth Circuit has discussed two types of such credible evidence: (1) "evidence suggesting that the harasser intended to have some kind of sexual contact with the plaintiff rather than merely to humiliate [her] for reasons unrelated to sexual interest" and (2) "proof that the alleged harasser made same-sex sexual advances to others, especially to other employees." Clark has never claimed she was sexually propositioned, and there is no evidence from which an invitation to engage in sexual activity can be reasonably inferred. No evidence exists of same-sex sexual advances from either Monterrubio or Boyer towards anyone. The record references some rumors that one or both of them are possibly lesbians or bisexual, but such gossip and speculation does not constitute credible evidence. Neither is Clark's subjective belief that Monterrubio looked at her in a "creepy" manner and was "hitting on her." Thus, Clark cannot raise a fact issue under Oncale 's first route by showing sexual propositions from a homosexual harasser.
La Day v. Catalyst Tech., Inc. , 302 F.3d 474, 480 (5th Cir. 2002).
See Stancombe v. New Process Steel LP , 652 Fed.Appx. 729, 733 (11th Cir. 2016) ("Stancombe's apparent belief that Woodfin was gay and workplace rumors to that effect do not qualify as ‘credible evidence.’ "); Reissner v. Rochester Gas & Elec. Corp. , No. 02-CV-6353-CJS, 2004 WL 941645, at *9 (W.D.N.Y. Apr. 22, 2004) (office gossip is not credible evidence of homosexuality).
See Stancombe , 652 Fed.Appx. at 733 ; Wasek v. Arrow Energy Servs. , No. 09-11350-BC, 2010 WL 3904697, at *6 (E.D. Mich. Sept. 29, 2010) ("Plaintiff's belief that Ottobre was ‘possibly bi-sexual’ does not constitute ‘credible evidence’ that his harasser was gay."); English v. Pohanka of Chantilly, Inc. , 190 F.Supp.2d 833, 846 (E.D. Va. 2002) (holding plaintiff cannot rely on his subjective belief that harasser was gay); see also Mills v. First Fed. Sav. & Loan Ass'n of Belvidere , 83 F.3d 833, 841–42 (7th Cir. 1996) ("[I]f the subjective beliefs of plaintiffs in employment discrimination cases could, by themselves, create genuine issues of material fact, then virtually all defense motions for summary judgment in such cases would be doomed."); Tex. Div.–Tranter, Inc. v. Carrozza , 876 S.W.2d 312, 314 (Tex. 1994) ("Carrozza's subjective beliefs are no more than conclusions and are not competent summary judgment evidence.").
The evidence does not otherwise show a fact issue regarding motivation based on sexual attraction or desire. Before we analyze any particular evidence, it is imperative to keep in mind the entire context. The Oncale Court admonished tribunals to always consider the context when assessing whether harassing conduct is severe and pervasive, and attention to context is equally important in determining whether conduct is gender motivated. "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed."
Lack v. Wal–Mart Stores, Inc. , 240 F.3d 255, 261 (4th Cir. 2001) ("The causation element must be analyzed in its proper context."); Shepherd v. Slater Steels Corp. , 168 F.3d 998, 1010 (7th Cir. 1999) ("Whether the sexual content of the harassment is indicative of sex discrimination must therefore be examined with attention to the context in which the harassment occurs."); cf. City of Keller v. Wilson , 168 S.W.3d 802, 811–12 (Tex. 2005) (emphasizing the importance of context evidence when reviewing legal sufficiency).
A careful evaluation of Clark's complaints reveals no evidence of harassment motivated by sexual desire. In a series of mostly written complaints, Clark thoroughly detailed a list of accusations, mostly against Monterrubio, but also a few against Boyer and eventually many others in the department. The gist of Clark's complaints was that Monterrubio was rude, crude, and regularly unprofessional, not just to Clark, but in Monterrubio's interactions with colleagues, parents, and students. Male and female alike. Both in the workplace and at work-related events. But mostly, the complaints chronicle events depicting Monterrubio as a bully who simply did not like Clark, was vindictive, and exploited every opportunity to target her and make her feel uncomfortable.
Among the more than one hundred incidents Clark cataloged in writing over two school years, only a handful involved specific comments Clark alleges Monterrubio made about female body parts, including Clark's buttocks, the size of her breasts, and whether they are real. Clark also complained that Monterrubio frequently used vulgar language with sexual connotations that was sometimes directed at Clark and periodically discussed Monterrubio's sexual encounters between herself and various men. Monterrubio shared a couple of nude photos of men and forwarded eight to ten emails, some of which contained mild profanity and off-color jokes, to Clark and several other people. Clark was particularly disturbed by Monterrubio's and Boyer's conduct at the faculty Christmas party, where they brought "indecent ornament[s]" for a faculty gift exchange, became intoxicated, and grabbed their own "private areas" while "[f]ooling around" and engaging in "horseplay," and then similarly grabbed Clark's behind briefly during a group photo. The multitude of other incidents Clark described are not remotely sexual in nature, involving things such as being brushed up against while passing in a doorway, swearing, rudeness, teasing, criticizing her teaching and parenting skills, loud music, dirty looks, hiding her phone and keys, reading her papers, throwing away her printouts, being locked out of the gym and excluded from breakfast tacos, and discussing topics such as atheism and abortion, among many others.
Rather than sexual desire, the record is replete with evidence directly from Clark's complaints and deposition that Monterrubio and Boyer engaged in this behavior for other reasons. Monterrubio was jealous of Clark, viewed her as "snotty" and "high and mighty," thought she should quit her job to be a stay-at-home mom, did not like Clark's children or approve of her bringing them to school, was a bully who enjoyed getting a rise out of her, and along with her friend Boyer, simply did not like Clark. None of those motives are based on gender. Sexually tinged comments may be motivated by other reasons, such as personal animus, jealousy, or the desire to irritate or bully. We do not hold, as the dissent insinuates, that such motives justify a "steady stream of sexual harassment." That puts the cart before the horse by assuming the conduct at issue is sexual harassment without examining the motives necessary to establish sexual harassment. Motives like personal animus or bullying do not satisfy the because-of-sex requirement, even if the comments are profane, vulgar, or have sexual overtones. Myopic focus on select details of offending behavior ignores the reason for it, and the reason is what matters under the TCHRA.
See McCown v. St. John's Health Sys., Inc. , 349 F.3d 540, 543 (8th Cir. 2003) (finding no evidence of sexual-desire motivation, in part because the harasser "was just trying to ‘irritate’ [the plaintiff] because ‘that's just how [the harasser] was"); King v. Super Serv., Inc. , 68 Fed.Appx. 659, 663 (6th Cir. 2003) (finding no evidence harassers were motivated by sexual desire rather than "animus, power, or whatever it is that drives bullies to single out others for taunting and ridicule," even though they "directed crude and sexually suggestive language" toward plaintiff); Davis v. Coastal Int'l Sec., Inc. , 275 F.3d 1119, 1123 (D.C. Cir. 2002) (concluding no jury could find motivation by sexual attraction rather than a grudge); Wasek , 2010 WL 3904697, at *6–7 ("Ottobre believed harassing Plaintiff was funny, not sexually gratifying.... [T]he record indicates that Ottobre was a bully; a man who enjoyed mentally and physically tormenting weaker people around him.... It does not, however, indicate that Ottobre's enjoyment was sexual in nature or that he targeted Plaintiff because of his sex."); English , 190 F.Supp.2d at 836 ("The conduct must be discrimination motivated by the victim's gender, not the harasser's desire to humiliate or tease the Plaintiff.").
Post at 815-16.
See Baldwin v. Blue Cross/Blue Shield of Ala. , 480 F.3d 1287, 1301 (11th Cir. 2007) ("Title VII does not prohibit profanity alone, however profane.").
See Pedroza v. Cintas Corp. No. 2 , 397 F.3d 1063, 1069 (8th Cir. 2005) (noting a plaintiff must prove "she was the target of harassment because of her sex and that the offensive behavior was not merely non-actionable, vulgar behavior"); McCown , 349 F.3d at 543 ("[C]rude gender-specific vulgarity is not, by itself, probative of gender discrimination.").
Clark complained that Monterrubio harassed and bullied not only her but seemingly everyone else she encountered, including students, parents, and the other coaches. As Clark herself alleged, Monterrubio enjoyed being crass and profane and telling dirty jokes and stories to all the coaches, male and female, not just Clark. This treatment of co-workers of both genders provides crucial context that Monterrubio's motives were based on factors other than gender. In other words, Monterrubio offended everyone indiscriminately. "It would be paradoxical to permit a plaintiff to prevail on a claim of discrimination based on indiscriminate conduct." Monterrubio may have directed more of her attention to Clark than other men and women at work, but there is no evidence she did so because Clark is a woman.
Baldwin , 480 F.3d at 1301 ; see also Lack , 240 F.3d at 262 ("Bragg was just an indiscriminately vulgar and offensive supervisor, obnoxious to men and women alike."); Jackson v. City of Killeen , 654 F.2d 1181, 1186 (5th Cir. 1981) ("It scarce need be said that Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course, discrimination."). The dissent points to some federal cases finding mistreatment of both male and female co-workers did not foreclose a finding of sexual harassment when women were treated disproportionately worse. Post at 816-17. No evidence of similar disparities in male/female treatment exists here, as will be explained in section II.B.4 infra.
Clark claims that acts of "unwanted sexual touching" indicate sexual desire. The record does not support this allegation. The only touching allegation that could conceivably be interpreted as sexual is Monterrubio and Boyer grabbing her behind during a group photo. Again, context is critical. This is why, as Justice Scalia explained in Oncale , a coach smacking a football player's buttocks as he heads onto the field is not harassment whereas the same action towards the coach's secretary might be. Other courts analyzing same-sex harassment claims have similarly distinguished sexual horseplay from sexual discrimination or concluded, based on the surrounding circumstances, that much more egregious instances of physical contact than Clark alleges did not show gender motivation, including grabbing the plaintiff's genitals, poking the plaintiff's rectum, the harasser running her hands and body over the plaintiff's body, and the harasser grinding his genitals on the plaintiff.
See Lord v. High Voltage Software, Inc. , 839 F.3d 556, 562 (7th Cir. 2016) ("Sexual horseplay differs from sex discrimination , and Title VII covers only discriminatory conduct." (emphasis in original) (internal quotation marks omitted) ).
See, e.g. , id. at 560–62 (repeatedly grabbed and poked bottom, grabbed between the legs); Smith , 622 F.3d at 905, 907–08 (pushed plaintiff against wall for ten to fifteen seconds while rubbing her hands and body up against plaintiff to demonstrate how she would rape someone); McCown v. St. John's Health Sys., Inc. , 349 F.3d 540, 541–44 (8th Cir. 2003) (grabbed and kicked bottom, ground genitals against plaintiff in simulated intercourse, attempted to insert shovel handle in anus); Linville v. Sears, Roebuck & Co. , 335 F.3d 822, 823–84 (8th Cir. 2003) (repeatedly hit scrotum); King v. Super Serv., Inc. , 68 Fed.Appx. 659, 660–61, 663–64 (6th Cir. 2003) (grabbing, punching, and kicking); Wasek v. Arrow Energy Servs. , No. 09-11350-BC, 2010 WL 3904697, at *2–3, 7 (E.D. Mich. Sept. 29, 2010) (repeated poking in buttocks with hands and tools); Collins , 263 F.Supp.2d at 916, 919 (repeated crotch grabbing); English v. Pohanka of Chantilly, Inc. , 190 F.Supp.2d 833, 837–38, 849 (E.D. Va. 2002) (hit behind, rubbed genitals against plaintiff).
Here too, context informs the nature of the contact. Clark acknowledged Monterrubio and Boyer had been "[f]ooling around" and similarly touching each other as "horseplay" shortly before grabbing her behind during the photo. She confirmed she did not know their motivation in grabbing her, though she did not consider it "playing around because that's not the way I play." By her own account, the incident occurred only once, was in public, lasted only a few seconds, and was not accompanied by a sexual proposition. In most circumstances, unwelcome touching of a co-worker's buttocks is inappropriate and may well violate the employer's internal policies and lead to disciplinary action. Considered in the context of this event and Monterrubio's prior interactions with Clark, however, this isolated instance of intentional physical contact, though understandably upsetting, could not be reasonably interpreted as a sexually motivated touching.
See English , 190 F.Supp.2d at 845–46 (conduct including touching behind and rubbing genitals against plaintiff did not constitute evidence of sexual attraction because there was no direct sexual proposition and the conduct was public and designed to solicit laughter, indicating it was teasing and horseplay).
The handful of other incidents of physical contact Clark alleges, such as bumping in a doorway, also cannot be reasonably interpreted as indicating sexual desire, individually or collectively. In fact, Clark characterized those incidents as bullying and retaliatory because Monterrubio was upset about Clark's complaints, which is distinct from gender motivation.
See Swindle v. Jefferson Cty. Comm'n , 593 Fed.Appx. 919, 925–26 (11th Cir. 2014) (distinguishing conduct motivated by sex from conduct motivated by retaliation for complaining about sexual harassment).
Aside from physical contact, Clark claims that Monterrubio "commenting about [her] body ... would be evidence ... that she liked [her] body" and therefore was sexually attracted to her. We disagree. It takes more than a woman noticing and commenting on a feature of another woman's body—even in a complimentary way—to demonstrate sexual attraction. And none of Monterrubio's body-related comments are, on their face, complimentary.
See Wade v. Automation Pers. Servs. , No. 1:12-cv-375, 2014 WL 11515694, at *1, 5 (E.D. Tenn. July 7, 2014) (comments about plaintiff's undergarments and breasts, including their size, did not indicate sexual desire because female harasser never propositioned plaintiff, described same-sex sexual activity, or indicated she found plaintiff attractive); see also Lack v. Wal–Mart Stores, Inc. , 240 F.3d 255, 261 (4th Cir. 2001) (sex-specific comments from male harasser to plaintiff, including about plaintiff's genitals, did not indicate gender motivation).
Clark emphasizes Monterrubio's purported statement that she would "think about" Clark during intercourse with her boyfriend while burning a candle Clark brought to the coaches' holiday gift exchange. But even then, Monterrubio did not say she wanted to have sex with Clark but with someone else. Though Clark does not mention it in her briefing, the dissent points to an incident Clark discusses in her deposition involving a cupcake. During a meeting in which Clark was complaining to Boyer about Monterrubio's profanity, Monterrubio repeatedly interrupted the meeting by coming in and out of the office. One of these interruptions involved Monterrubio "using her tongue to lick seductively the cupcake icing off of a cupcake." Considering these circumstances, which the dissent acknowledges but does not account for, and notwithstanding Clark's subjective view of its "seductive[ness]," Monterrubio's licking a cupcake cannot reasonably be equated with a genuine sexual proposition. Considered in isolation or in the context of Clark's other complaints, these comments do not indicate sexual attraction to Clark but, consistent with her other behavior, a desire to tease Clark and make her feel uncomfortable.
See Lord , 839 F.3d at 560, 562 (four instances of male harasser touching plaintiff's buttocks and grabbing "between his legs" was not "so explicit or patently indicative of sexual arousal that a trier of fact could reasonably draw that conclusion").
Viewing all the evidence in context and as favorably to Clark as the reasonable inferences allow, no reasonable juror could find the behavior Clark complains of was motivated by sexual desire.
3. No Evidence of General Hostility to Women
Evidence that "a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace" can establish harassment because of gender under Oncale 's second evidentiary route. This evidence focuses on hostility towards the harasser's own gender in the workplace. Though presumably uncommon, discriminatory animus might arise, for example, in a situation where a male doctor believes men should not be nurses or a female airline executive thinks piloting is a man's job. Clark makes no argument under this evidentiary method—and for good reason given her allegations of Monterrubio's across-the-board mistreatment of male and female coaches. None of the record evidence even hints that Monterrubio's behavior, with her mistreatment of men and women alike, evinces hostility to her own gender in the workplace. Thus, Clark has not raised a fact issue under Oncale 's second evidentiary route.
Bibby v. Phila. Coca Cola Bottling Co. , 260 F.3d 257, 262 (3d Cir. 2001).
See Smith v. Hy–Vee, Inc. , 622 F.3d 904, 908 (8th Cir. 2010) (rejecting second-route evidentiary theory because evidence showed harasser "treated all employees, both male and female, in the same vulgar and inappropriate way").
4. No Direct Comparative Evidence of Discrimination
Oncale 's third method of proving sex-based discrimination in same-sex harassment cases is offering "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." This method allows a same-sex harassment plaintiff to demonstrate gender motivation based on either sex-neutral conduct or conduct with sexual connotations.
Following oral argument, Clark asserted, for the first time in this case, that a fact issue exists under this theory. Thus, we must examine the record for evidence of how Monterrubio treated her co-workers. We find the record is sparse and inadequate to raise a fact issue. Generally, Clark alleges the following about Monterrubio:
• "Not only did [Monterrubio] talk trash about me, but she did it about everyone behind their backs. She constantly complained about Coach Moore, Coach Gonzales, Coach McCallister, and all the male coaches. She made fun of their professional and private lives. She griped about the way they worked and made digs about their character on a daily basis."
• Monterrubio "is extremely hostile toward her co-workers on a daily basis."
• "She makes fun of not just me, but students, parents, and teachers on a daily basis. She badmouths others and
has no concern for discretion.... She is known to habitually snap at me, other coaches, students, and parents. She enjoys teasing students and staff and causing trouble. Ann shouts at students and fellow coaches, including me."
• She curses, tells dirty jokes, and discusses sex around the entire department.
The record contains some evidence of specific examples of Monterrubio's alleged inappropriate behavior:
• She made comments about three other co-workers' breasts, including whether they had breast implants.
• Two male coaches complained that she made a sexual innuendo to them regarding a hurdler stretch.
• She talked to a male coach about his body, weight loss, and use of diet pills.
• She told specific dirty jokes and stories about her personal sexual adventures to a group of male and female coaches at least five times.
• She showed nude photographs of men to other male and female coaches twice.
• She told both Clark and another male coach that they would make a good couple and should "hook up."
• She forwarded a series of mildly profane and off-color email jokes and cartoons to several people.
This evidence shows significant, similar inappropriate conduct toward both male and female co-workers, which does not raise an inference of discrimination based on sex. Clark argues Monterrubio treated her worse than the male coaches, but at best, Clark documents many more particular instances of abuse against her personally than any other co-worker, male or female. Evidence that Clark was targeted as an individual does not raise an inference of gender-based discrimination under this comparative-based evidentiary route.
Cf. Chavez v. Thomas & Betts Corp. , 396 F.3d 1088, 1096 (10th Cir. 2005) (finding sufficient evidence under third route because harasser "regularly directed sexually charged, humiliating, and hostile comments towards women but would not do the same towards men").
See Davis v. Coastal Int'l Sec., Inc. , 275 F.3d 1119, 1124 (D.C. Cir. 2002) (concluding plaintiff had not shown harasser treated men differently than women but that they "targeted Davis because of his behavior as an individual rather than because of his sex").
5. Comments About Gender–Specific Anatomy and Characteristics do not Alone Raise an Inference that Harassment is Because of Gender
The court of appeals did not rely on an Oncale evidentiary route, summarily holding that Clark raised a fact issue concerning gender-based harassment because "the bulk of Monterrubio's comments relate to the fact that Clark is female" and "Monterrubio made a significant number of comments to Clark about Clark's female anatomy, i.e., her breasts, as well as her buttocks." The dissent adopts a similar approach, concluding that the because-of-sex requirement can be met simply—and solely—by showing that at least some of the harasser's comments referred to gender-specific anatomy and characteristics. Though we agree that gender motivation may be proven outside Oncale 's framework, we disagree with the dissent's and lower court's analysis.
2015 WL 6163252, at *5 & n.2.
Factually, the record does not support a conclusion that "the bulk" of the relevant comments "relate to the fact that Clark is a female," as the court of appeals stated, or that the conduct "focused" on Clark's gender-specific anatomy, as the dissent concludes. Clark made over one hundred wide-ranging complaints, covering topics such as profanity, dirty jokes, rudeness, ostracism, petty slights, political views, atheism, pranks, and having her parenting and teaching skills criticized. None of these relate to Clark's female anatomy. To claim that Clark's female body was the main focus of Monterrubio's comments misstates the record.
Id. at, 2015 WL 6163252, at *5.
Post at 806-07, 812-13.
In addition to factual issues, focusing only on gender-specific anatomy and ignoring motivation is legally unsound and relies on a misreading of Oncale . Oncale does mention "sex-specific and derogatory" behavior, but it expressly tied that language to proving general hostility to one gender in the workplace under the second evidentiary route rather than as a stand-alone evidentiary path. Thus, the dissent is incorrect to position this theory as an established alternative evidentiary route supported by Oncale 's text.
A line of opposite-gender harassment cases uses Oncale 's"sex-specific and derogatory terms" language to argue that such behavior creates an inference of discrimination without regard to the underlying motivation. Such conduct could support an inference of sex discrimination in an opposite-gender case where, for example, the men in a mostly male environment mistreat a woman in gender-specific ways making it clear they disapprove of women in their workplace. Though we need not pass on the validity of the analysis these cases employ, at a minimum, they illustrate the importance of context; a woman harassing another woman in an all-female environment naturally raises different inferences than a man harassing the only woman in an otherwise male workplace. The dissent cites many of these cases as if they necessarily apply with equal force in same-gender cases. The dissent's theatrical device of switching the gender of the harasser for illustrative purposes is an analytically inapt oversimplification that bypasses an inquiry into the reasonableness of the inferences that may be drawn. Only reasonable inferences can be credited in a legal-sufficiency review.
See, e.g. , Hoyle v. Freightliner, LLC , 650 F.3d 321, 331–32 (4th Cir. 2011) ; EEOC v. Fairbrook Med. Clinic, P.A. , 609 F.3d 320, 327 (4th Cir. 2010) ; Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 811–12 (11th Cir. 2010) ; Forrest v. Brinker Int'l Payroll Co. , 511 F.3d 225, 229 (1st Cir. 2007) ; Ocheltree v. Scollon Prods., Inc. , 335 F.3d 325, 332–33 (4th Cir. 2003). Several pre-Oncale cases used similar analysis. See, e.g. , Doe v. City of Belleville , 119 F.3d 563, 577–78 (7th Cir. 1997), cert. granted, vacated, & remanded , 523 U.S. 1001, 118 S.Ct. 1183, 140 L.Ed.2d 313 (1998) (vacated and remanded for reconsideration in light of Oncale ); Winsor v. Hinckley Dodge, Inc. , 79 F.3d 996, 1000–01 (10th Cir. 1996) ; Steiner v. Showboat Operating Co. , 25 F.3d 1459, 1463–64 (9th Cir. 1994).
Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases. The Supreme Court was abundantly clear that gender motivation is not established "merely because the words used have sexual content or connotations." The Court rejected pre– Oncale lower-court authority holding "workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations." Consistent with Oncale , many courts in same-sex cases have recognized that crude, gender-specific vulgarity alone is insufficient to show that harassing behavior is because of gender.
Oncale , 523 U.S at 80, 118 S.Ct. 998.
Id. at 79, 118 S.Ct. 998 (citing Doe , 119 F.3d at 577–78 ); see also Bibby v. Phila. Coca Cola Bottling Co. , 260 F.3d 257, 263 n.5 (3d Cir. 2001) (explaining how Doe 's holding "that where the harassment was sexual in nature, it was not necessary for the plaintiff to prove that it was motivated by the victim's gender" was "clearly wrong in light of Oncale 's requirement that all sexual harassment plaintiffs must prove that the harassment was discrimination because of sex"); EEOC v. Trugreen Ltd. P'ship , 122 F.Supp.2d 986, 990 (W.D. Wisc. 1999) (noting Oncale 's explicit disapproval of Doe 's holding regarding gender motivation when the harassment has explicitly sexual overtones).
See, e.g. , McCown v. St. John's Health Sys., Inc. , 349 F.3d 540, 543 (8th Cir. 2003) ("[C]rude gender-specific vulgarity is not, by itself, probative of gender discrimination."); Lack v. Wal–Mart Stores, Inc. , 240 F.3d 255, 261 (4th Cir. 2001) (stating plaintiff cannot rely on the sex-specific nature of harasser's comments "without producing plausible evidence that such comments were animated by Bragg's hostility to Lack as a man"); English v. Pohanka of Chantilly, Inc. , 190 F.Supp.2d 833, 844 n.9 (E.D. Va. 2002) ("easily dispatch[ing]" argument that the sex-specific nature of the harassing comments alone shows the conduct was based on sex).
Furthermore, that a comment relates to a woman's body says nothing about the speaker's motive. The TCHRA is not a strict liability statute that mandates a finding of sex discrimination for any mention of a gender-specific body part. Motivation, informed by context, is the essential inquiry. Why matters. In other words, the bare act of one woman speaking to another woman about her female anatomy does not establish the comments were gender motivated.
See Lack , 240 F.3d at 260 (distinguishing between "harassment that is sexual in content" and "harassment that is sexually motivated").
See Oncale , 523 U.S. at 79–81, 118 S.Ct. 998.
Taking all of her evidence as true, Clark experienced misery at work that no employee should endure. But it is not an actionable TCHRA violation. No reasonable juror could find that Clark's gender motivated the conduct toward her, and thus immunity has not been waived as to her sexual-harassment claim.
As a companion to its anti-discrimination provision, the TCHRA prohibits retaliation against an employee for engaging in certain protected activities, such as reporting sexual harassment. Retaliation claims can be actionable under the TCHRA even if the underlying discrimination claim is not. The parties here dispute whether the evidence is sufficient to raise a fact issue as to the extent of Clark's protected activity and whether engaging in such activity caused a material adverse employment action.
In discrimination and retaliation cases under the TCHRA, Texas jurisprudence parallels federal cases construing and applying equivalent federal statutes, like Title VII. Accordingly, we follow the well-settled proof principle that statutory violations can be established with either direct or circumstantial evidence.
Because smoking guns are hard to come by, the three-part McDonnell Douglas burden-shifting framework enables an employee to establish discrimination with circumstantial evidence. If the employee can establish a prima facie case of discrimination, a rebuttable presumption of discrimination arises, which can alone sustain a discrimination claim. But the employer can defeat this presumption merely by producing evidence of a legitimate, nondiscriminatory reason for the disputed employment action. Once rebutted, the presumption disappears, and an employee lacking direct evidence cannot prove a statutory violation without evidence that the employer's stated reason is false and a pretext for discrimination. In both direct- and circumstantial-evidence cases, the burden of persuasion remains at all times with the employee. These three burden-shifting steps apply to retaliation claims, but the precise evidentiary elements of the prima facie case differ from discrimination cases due to the nature of the claims.
See Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 253–54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ; McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Id. at 254–55, 101 S.Ct. 1089.
McCullough v. Houston Cty. , 297 Fed.Appx. 282, 288 (5th Cir. 2008).
To establish a prima facie case of retaliation, an employee must show: (1) she engaged in an activity protected by the TCHRA, (2) she experienced a material adverse employment action, and (3) a causal link exists between the protected activity and the adverse action. 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. However, if the employer provides evidence of a legitimate reason for the adverse action, under the federal standard, the employee must prove the adverse action would not have occurred "but for" the protected activity. The but-for causation standard is significantly more difficult to prove than prima facie causation. The parties dispute which of these three steps are implicated in the jurisdictional analysis and whether the evidence raises a fact issue sufficient to invoke the TCHRA's merits-based immunity waiver.
Evans v. City of Hous. , 246 F.3d 344, 354 (5th Cir. 2001).
See Strong v. Univ. Healthcare Sys., L.L.C. , 482 F.3d 802, 808 (5th Cir. 2007).
Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 636–37 (Tex. 2012).
The dissent concludes that TCHRA retaliation claims should be evaluated not under a but-for causation standard but by assessing whether the protected activity was a motivating factor for the adverse action. We have yet to determine the appropriate causation standard for a TCHRA retaliation claim, but because the parties have advocated the but-for standard and have not asserted any other should apply, we apply it in this case.
1. Jurisdictional Facts
To support the jurisdictional plea, Alamo Heights produced evidence (1) challenging most aspects of Clark's prima facie case of retaliation, (2) asserting nonretaliatory reasons for the adverse employment actions, namely Clark's performance issues, and (3) challenging but-for causation between the alleged protected activities and the adverse employment actions. Citing our decision in Mission Consolidated Independent School District v. Garcia , the court of appeals limited the jurisdictional analysis to the prima-facie-case element, meaning evidence regarding the other two stages was not considered in determining whether Clark raised a fact issue regarding the immunity waiver. This was error. All elements of a TCHRA circumstantial-evidence claim are, perforce, jurisdictional. If the jurisdictional evidence does not negate or rebut the prima facie case, the ensuing aspects of the burden-shifting analysis are not implicated in the jurisdictional inquiry. But if, as here, jurisdictional evidence rebuts the prima facie case, the entire McDonnell Douglas framework is fully implicated, and sufficient evidence of pretext and causation must exist to survive the jurisdictional plea.
372 S.W.3d 629 (Tex. 2012).
2015 WL 6163252, at *4, 6 (Tex. App.—San Antonio 2015).
In holding otherwise, the court of appeals misinterpreted Garcia as conscribing the jurisdictional examination. Garcia involved a circumstantial-evidence TCHRA age-discrimination claim. The defendant filed a plea to the jurisdiction, presenting evidence challenging one element of Garcia's prima facie case. Observing that "the Labor Code waives immunity from suit only when the plaintiff actually states a claim for conduct that would violate the TCHRA," we held the elements of the McDonnell Douglas prima facie case constitute jurisdictional facts because a prima facie case is "the necessary first step" to bringing a TCHRA claim based on circumstantial evidence. The defendant's jurisdictional challenge negated an element of the prima facie case, which triggered the plaintiff's duty to raise a fact issue on the issue of discriminatory intent. Because the plaintiff failed to do so, we dismissed the suit for want of jurisdiction.
Id. at 632–33.
Id. at 637.
Id. at 637–38.
See id. at 641.
Id. at 642–43.
As a factual matter, Garcia involved only the prima facie case, but its core analysis is not limited to that step of the framework. Because a statutory violation is necessary to establish an immunity waiver, jurisdiction and the merits intertwine. And because a circumstantial-evidence case depends on the McDonnell Douglas framework, the burden-shifting scheme in toto defines the jurisdictional facts. In Garcia , the defendant had negated an element of the prima facie case, meaning no presumption of discrimination existed. Here, the defendant rebutted the prima facie case by producing evidence of a legitimate reason for its employment actions, which means no presumption of retaliation exists. The absence of a presumption triggers the plaintiff's duty to create a fact question on the ultimate issue—whether retaliation caused the adverse employment action—to survive a jurisdictional challenge. The entire burden-shifting framework is a mechanism for proving discriminatory intent absent direct evidence, and all phases, not just the prima facie case, are relevant to the jurisdictional inquiry. We thus disapprove of those cases limiting the jurisdictional inquiry to the prima-facie-case element of a TCHRA circumstantial-evidence case.
Id. at 635–36.
Id. at 642.
See, e.g. , Alamo Heights Indep. Sch. Dist. v. Clark , 2015 WL 6163252, at *4, 6 (Tex. App.—San Antonio 2015) ; Tex. Dep't of State Health Servs. v. Rockwood , 468 S.W.3d 147, 154, 157 (Tex. App.—San Antonio 2015, no pet.) ; Rosenberg v. KIPP, Inc. , 458 S.W.3d 171, 178 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) ; KIPP, Inc. v. Whitehead , 446 S.W.3d 99, 112–13 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) ; Fort Bend Indep. Sch. Dist. v. Williams , No. 01-13-00052-CV, 2013 WL 4779693, at *3 n.4 (Tex. App.—Houston [1st Dist.] Sept. 5, 2013, no pet.).
Our holding that all elements of a circumstantial-evidence TCHRA claim are jurisdictional facts aligns with our holdings in State v. Lueck , San Antonio Water System v. Nicholas , and our Texas Tort Claims Act jurisprudence. As we explained in those cases, some evidence of a viable claim must exist to invoke an immunity waiver tied to the merits of a claim.
290 S.W.3d 876, 881 (Tex. 2009).
461 S.W.3d 131, 135–36 (Tex. 2015).
In Lueck , we analyzed the scope of jurisdictional facts under the Whistleblower Act. Like the TCHRA, the Whistleblower Act waives governmental immunity for "a violation" of the Act. Because immunity waiver is bound to a statutory violation, we held the elements of a Whistleblower Act claim "must be considered in order to ascertain what constitutes a violation" and thus "the elements [of a violation] can be considered as jurisdictional facts."
See Tex. Gov't Code § 554.0035.
Lueck , 290 S.W.3d at 881.
We followed both Lueck and Garcia in Nicholas , which involved a post-verdict jurisdictional plea in a TCHRA circumstantial-evidence retaliation case. Analyzing the jurisdictional argument, we stated that "[t]he elements of a retaliation claim under the TCHRA are jurisdictional in nature." We determined immunity was not waived, and the trial court thus had no jurisdiction, because no legally sufficient evidence supported an essential element of the claim. We explained that "[l]ike a failure of proof at the prima facie stage, a failure to prove the elements of a TCHRA claim [even] after a trial on the merits deprives the trial court of jurisdiction."
Id. at 136.
Id. at 139.
Id. at 136.
As we have consistently held—in Lueck , Garcia , and Nicholas —when the Legislature conditions an immunity waiver on the existence of a statutory violation, the elements of the violation are jurisdictional facts. When analyzing immunity waiver under the Texas Tort Claims Act, which likewise waives immunity to the extent of liability, we have also framed our jurisdictional analysis in terms of a claim's elements. A plaintiff's failure of proof at the prima facie stage (as in Garcia ), post-verdict (as in Nicholas ), or anywhere in between produces the same result: no immunity waiver and no jurisdiction. Whenever the prima facie case's presumption drops out of a case, there must be other evidence to prove the claim. The second and third McDonnell Douglas steps are part of an integrated evidentiary framework, and exempting them from this analysis is thus erroneous.
See Lueck , 290 S.W.3d at 882 ("In Miranda , we also considered elements under the Texas Recreational Use statute to determine whether immunity was waived under the Tort Claims Act." (citing Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225 (Tex. 2004) ) ); City of Waco v. Kirwan , 298 S.W.3d 618, 622, 628–29 (Tex. 2009) (analyzing governmental immunity in a Tort Claims Act suit based on the elements of duty and conscious indifference).
The nature of proof in retaliation cases illuminates the point. The causation burden in the prima-facie-case element is significantly lower than the ultimate burden to prove the protected activity caused retaliation. But when the prima facie case is rebutted, there is no presumption and thus no evidence of illegal intent. Permitting a McDonnell Douglas case to proceed to trial when the prima facie case has been rebutted and the plaintiff has not raised a fact issue on causation defies logic. More importantly, allowing a trial to proceed without evidence to sustain a claim is repugnant to the TCHRA's immunity waiver and contrary to the legitimate objectives of governmental immunity.
See Strong v. Univ. Healthcare Sys. L.L.C. , 482 F.3d 802, 808 (5th Cir. 2007).
See Tooke v. City of Mexia , 197 S.W.3d 325, 332 (Tex. 2006) ("an important purpose" of sovereign immunity is "to shield the public from the costs and consequences of improvident actions of their governments"); Tex. Nat. Res. Conservation Comm'n v. IT–Davy , 74 S.W.3d 849, 854 (Tex. 2002) ("Subjecting the government to liability may hamper governmental functions by shifting tax resources away from their intended purposes toward defending lawsuits and paying judgments.").
Though Clark concedes she would be required to raise a material fact issue on pretext in a summary-judgment proceeding, she argues the plaintiff's burden to respond to a jurisdictional challenge should be minimal and not unnecessarily involve the merits. We reject this argument. When the merits and jurisdiction overlap, as they do in TCHRA cases, and the defendant challenges the evidence to sustain a violation, plea-to-the-jurisdiction proceedings "mirror[ ] that of a traditional summary judgment motion." Whether by jurisdictional plea or summary-judgment motion, the plaintiff is not put to the ultimate burden of proof but must only raise a fact issue on the existence of illegal intent.
Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 635 (Tex. 2012).
Clark asserts that if all the elements of the burden-shifting evidentiary mechanism are jurisdictional, a "plaintiff suing a governmental entity would be in the position of pleading[ ] facts to rebut the defendant's proffered excuse without full discovery, when the facts and details that show an excuse is false or a pretext are often solely in the control of the defendant." Clark's concerns about the impact on pleading practice are unwarranted. Once a defendant challenges the plaintiff's case with evidence , the jurisdictional inquiry focuses on the evidence and whether the plaintiff can create a fact issue. The pleadings are not implicated, and if discovery is necessary, trial courts have broad discretion to permit targeted discovery and alter hearing deadlines to allow parties the opportunity to respond with evidence. Clark does not argue she lacked evidence or preparation time and, indeed, has asserted that the case is ready for trial. Accordingly, we analyze whether the record contains evidence raising a fact issue.
See id. ; Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000).
Garcia , 372 S.W.3d at 642–43.
2. Evidence of Retaliation
Because Alamo Heights produced evidence on the prima facie case and the remainder of the burden-shifting framework, we evaluate the evidence regarding all elements of the retaliation claim.
a. Protected Activity
An employee engages in a protected activity by, among other things, filing an internal complaint, opposing a discriminatory practice, or making a charge of discrimination with the EEOC. The employee's complaint must, at a minimum, alert the employer to the employee's reasonable belief that unlawful discrimination is at issue. The parties agree Clark's EEOC charge is protected activity. Clark also contends three internal complaints constitute additional protected activities: the May 14, 2008 letter to Principal Kershner; a March 2008 meeting with Kershner; and an October 2007 meeting with Michelle Boyer, the girls athletic coordinator. We disagree and conclude only Clark's EEOC charge is protected activity.
Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 586 (Tex. 2017) (" ‘[P]rotected opposition must at least alert an employer to the employee's reasonable belief that unlawful discrimination is at issue.’ " (quoting Brown v. United Parcel Serv., Inc. , 406 Fed.Appx. 837, 840 (5th Cir. 2010) ) ); see also Harris–Childs v. Medco Health Sols., Inc. , 169 Fed.Appx. 913, 916 (5th Cir. 2006) (affirming summary judgment on retaliation claim because plaintiff "has not demonstrated that she put the employer on notice that her complaint was based on racial or sexual discrimination").
In May 2008, Clark lodged her first written complaint, a thirteen-page letter to Principal Kershner detailing an array of grievances about Monterrubio and, to a limited degree, Boyer's inaction. We conclude this letter was insufficient to put Kershner on notice that Clark was complaining that these two women were harassing her based on her gender.
As previously discussed, a handful of Clark's allegations contain a sexual component, but an overwhelming number did not. Among the more than four dozen incidents of harassment Clark catalogued in the May 14 letter, her broad-ranging complaints included mistreatment directed not only toward her but to all the other coaches, both male and female, as well as parents and students. She never even hinted that she believed she was targeted because of her gender or any other protected trait. Indeed, she ascribed the behavior to motives such as thinking she is a "snotty" Alamo Heights mom and disliking her teaching and parenting style, and she said what ultimately impelled her to make a formal complaint was Monterrubio's crude comment about Monterrubio's use of the restroom.
"Magic words" are not required to invoke the TCHRA's anti-retaliation protection. But complaining only of "harassment," "hostile environment," "discrimination," or "bullying" is not enough. There must be some indication of gender motivation, such as sexual propositioning or other behavior signifying Clark's belief that her gender motivated the behavior. That simply is not present in the letter. Though the letter characterized Monterrubio's behavior as "inappropriate," "offensive," "bullying," "harassment," "embarrassing," "rude," and "intimidating," a jury could not reasonably conclude Clark alerted Principal Kershner that she thought Monterrubio was acting out of sexual desire towards her or that her conduct otherwise constituted sex-based discrimination.
See Rincones , 520 S.W.3d at 585–86 (holding a complaint of mistreatment compared to a co-worker the employer knew was of a different race was insufficient to raise a fact issue that the employee alerted the employer to a race-discrimination complaint); see also Gordon v. Acosta Sales & Mktg., Inc. , 622 Fed.Appx. 426, 431 (5th Cir. 2015) (affirming summary judgment for employer on retaliation claim because employee's complaint "was a personal grievance rather than a complaint resulting from illegal discrimination"); Brown , 406 Fed.Appx. at 840 (concluding an employee's complaint of "discrimination" was not reasonably based on race but on other motives); Harris–Childs , 169 Fed.Appx. at 916 (rejecting notion that any complaint of "harassment" encompasses either race or sex); Warrick v. Motiva Enters. , No. 14-13-00938-CV, 2014 WL 7405645, at *8 (Tex. App.—Houston [14th Dist.] Dec. 30, 2014, no pet.) (mem. op.) (summary judgment appropriate on retaliation claim because plaintiff's email "does not allege that either her co-worker's treatment or the alleged bullying against her were based on a protected characteristic"); Cty. of Travis v. Manion , No. 03-11-00533-CV, 2012 WL 1839399, at *6 (Tex. App.—Austin May 17, 2012, no pet.) (mem. op.) ("Although Manion referred once to ‘discriminatory treatment’ and used the terms ‘hostile actions,’ ‘hostile treatment,’ ‘hostile activity,’ and ‘harassment,’ the charge contains no suggestion that the ‘discriminatory’ or ‘hostile’ treatment or ‘harassment’ was based on gender ... and thus contained no allegations that would serve to put the County on notice that she intended to complain of discriminatory conduct based on sex," particularly in light of the alleged harasser also being female); Martinez v. Wilson Cty. , No. 04-09-00233-CV, 2010 WL 114407, at *1, 3–4 (Tex. App.—San Antonio 2010, no pet.) (mem. op.) (concluding plaintiff's written "Notice of Hostile Work Environment" complaining of rude and offensive behavior did not suggest any motivation based on a protected characteristic).
The dissent argues the allegations it concludes show gender-based harassment also indicate Clark notified Kershner of her belief she was harassed because of her gender. We disagree. As previously mentioned, two versions of the May 14 2008 letter are in the record—one bearing Clark's signature that she gave Kershner and an unsigned version Clark attached to her EEOC charge. Neither version communicates any belief that Monterrubio or Boyer were sexually attracted to Clark. Clark did not write that either of them sexually propositioned her, sexually touched her, or engaged in any sexually suggestive conduct toward her. Indeed, the only discussions of sexual activity involved Monterrubio's relations with several men, jokes about sex with men, and nude photos of men. Neither version of the letter mentions (1) that Monterrubio and Boyer grabbed Clark's behind during the Christmas photos, (2) the cupcake-licking incident, (3) that Monterrubio said she used Clark's razor to shave her genitals, (4) Monterrubio's statement "I wonder if Coach Clark swallows," (5) gossip that Monterrubio and Boyer might be homosexual, or (6) that Monterrubio looked at her in a "creepy way" or was "hitting on" her. Moreover, the version Clark gave Principal Kershner (1) omits Monterrubio's comments at the new teacher orientation about a different woman's breasts, (2) leaves out Monterrubio's purported statement that she would think about Clark during sex while using the candle Clark gave her, and (3) uses the word "breasts" rather than "tits" to describe an incident. These details are all material to the dissent's analysis, but because they were not included in the May 14 letter Clark gave Kershner, they cannot be considered in determining whether Clark alerted Kershner at that time of any reasonable belief that her complaint was based on sex.
Clark also asserts she "reported the sexual harassment" to Kershner during a March 2008 performance review meeting. Unlike the May letter two months later, where Clark exhaustively delineates her allegations, Clark provides no details about this exchange. Clark evidently did not report in March the then-existing details contained in the May letter because, in the letter, she stated she was "just now reporting this" because she feared retaliation and expected the problems to be addressed other ways. Whatever Clark said to Principal Kershner in the March meeting, no evidence indicates Clark communicated any belief that her problems with Monterrubio were gender based.
Clark says she told Boyer in October 2007 she "was tired of the jokes Ann made me the butt of." This complaint to Boyer also does not qualify as protected activity because it does not indicate a belief that Monterrubio told the jokes based on Clark's gender. Moreover, Boyer was not a decisionmaker for any adverse employment action, and there is no evidence Kershner knew about this conversation. Indeed, Clark has repeatedly asserted in this litigation that Boyer violated school policy by not reporting her complaints to Kershner or human resources. Thus, this complaint is not protected activity.
See Watts v. Kroger Co. , 170 F.3d 505, 512 (5th Cir. 1999) (concluding decisionmaker could not have retaliated based on protected activity of which it was unaware).
At Kershner's invitation, Clark spoke with the school counselor. Whether Clark also contends her conversations with the school counselor are protected activity is unclear. If so, this argument fails because the school counselor was not a decisionmaker, and no evidence exists that Kershner knew the details of these confidential conversations.
None of the internal complaints constitute protected activity under the TCHRA, meaning the only protected activity supported by the record is Clark's October 2008 EEOC charge.
b. Adverse Employment Action
The TCHRA does not protect employees from all retaliatory employment action, only from actions that are "materially adverse." Materially adverse "means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." This objective materiality requirement is necessary "to separate significant from trivial harms." "An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience."
Id. ; see also Park , 246 S.W.3d at 614–15.
Clark complained of a host of retaliatory conduct, including many of the incidents from the May 14 letter and essentially every unpleasant experience after filing her EEOC charge. The two most significant are (1) being placed on the growth plan and (2) termination. Termination is unquestionably a materially adverse employment action. As to the growth plan, courts' treatment of such plans has varied, in part depending on the nature of the plan and the consequences for not completing it. Principal Kershner warned Clark that failure to complete the plan could result in termination, and Clark was, in fact, terminated for not completing the plan, among other deficiencies. Given the actual consequences for failure to comply with it, we hold that implementing the growth plan constituted a materially adverse employment action in this case.
See Henry , 651 Fed.Appx. at 505 (concluding a performance improvement plan was an adverse employment action because it rendered the employee ineligible for promotion); Emami , 241 F.Supp.3d at 685 (finding a performance improvement plan was an adverse employment action because it was "actually implemented, and it imposed conditions with which his failure to comply ultimately led to termination of employment").
The remaining retaliation allegations are easily dispatched. Courts have repeatedly held that complaints of ostracism and personality conflicts, unfair criticism, and heated exchanges are petty annoyances, not conduct likely to deter an employee from making a discrimination complaint. The same is true for not sharing food, workplace issues like being excluded from meetings and micromanaged, interfering with personal property, and intentionally annoying behavior such as playing loud music.
See Brown v. Advocate S. Suburban Hosp. , 700 F.3d 1101, 1107 (7th Cir. 2012).
See Donaldson v. Tex. Dep't of Aging & Disability Servs. , 495 S.W.3d 421, 442–43 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
Clark complained that Monterrubio pushed her, bumped into her several times, and once chased Clark in her car. These are different in character than her other retaliation complaints but still do not rise to the level of material adversity, and they involved only Monterrubio, a co-worker, rather than a decisionmaker.
Finally, we must evaluate the evidence to determine whether it raises a fact issue causally linking Clark's filing an EEOC charge with her placement on a growth plan or termination. We conclude Clark has not raised a fact issue on causation, and thus immunity has not been waived for this claim.
i. Growth Plan
To state a prima facie case, Clark need only show a minimal causal link between the protected activity and the adverse action. Clark filed her EEOC charge in October, and Principal Kershner placed her on the growth plan about two to three weeks later. Clark contends the very close temporal proximity between those events demonstrates prima facie causation. Though this degree of temporal proximity would otherwise raise a fact issue on prima facie causation, undisputed evidence establishes Kershner and a human resources representative made the decision to implement the growth plan before they knew of Clark's charge. Carrying out a previously planned employment decision is no evidence of causation. Thus, Clark's retaliation claim based on implementation of the growth plan fails at the prima-facie-case stage.
See Evans v. City of Hous. , 246 F.3d 344, 354 (5th Cir. 2001).
Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 272, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ("Employers need not suspend previously planned [employment actions] upon discovering that [an EEOC charge] has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.").
Assuming Clark stated a prima facie retaliation case based on her termination, any presumption raised by that has been rebutted because Alamo Heights produced evidence of many performance reasons for terminating Clark's employment. Clark's burden to raise a fact issue that this explanation is a pretext and that she would not have been terminated but for filing an EEOC charge has, therefore, been activated.
See Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 352, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) ; Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 252–53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
In evaluating but-for causation evidence in retaliation cases, we examine all of the circumstances, including temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee's protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated employees, and evidence the employer's stated reason is false. Analyzing these factors as a whole, we conclude no genuine fact issue about causation exists.
See City of Fort Worth v. Zimlich , 29 S.W.3d 62, 69 (Tex. 2000).
Temporal proximity is relevant to causation when it is "very close." Eight months passed between the EEOC charge and Principal Kershner's termination recommendation. That gap is so long as to be of little, if any, probative value.
Strong v. Univ. Healthcare Sys., L.L.C. , 482 F.3d 802, 808 (5th Cir. 2007).
See Jackson v. Honeywell Int'l, Inc. , 601 Fed.Appx. 280, 286–87 (5th Cir. 2015) ("We have found a five month period between the protected activity and the adverse employment action insufficient to establish a causal link.").
It is undisputed that Principal Kershner knew of Clark's EEOC charge. Clark testified in her deposition that Kershner expressed a negative attitude toward her complaints, stating there would be "consequences" for them. This comment is vague and so devoid of context as to have barely a scintilla of probative value. Kershner gave Boyer a role in monitoring Clark's growth-plan compliance by requiring reports of weekly meetings, even though Clark had accused Boyer of harassment. This, according to Clark, demonstrates a negative attitude toward her complaints. However, all complaints of inappropriate conduct in the May 14 letter are directed toward Monterrubio, not Boyer. After a series of specific alleged retaliatory complaints directed at Boyer and others, Kershner amended the growth plan to eliminate the requirement of a weekly meeting with Boyer. Kershner encouraged Clark to report upsetting incidents, encouraged Clark to work with the school counselor to address issues of concern, and transferred Monterrubio to another campus at Clark's request. These actions do not show a negative attitude toward Clark's complaints.
The record bears some evidence that Alamo Heights did not follow relevant policies. Principal Kershner repeatedly reprimanded Clark for disregarding the district's formal grievance procedure in lodging her complaints, but as the Alamo Heights human resources representative confirmed, those policies do not apply to discrimination or retaliation complaints. It is undisputed that Kershner herself failed to comply with a district policy because she did not notify the superintendent in writing about all of Clark's complaints. This factor weighs in Clark's favor.
A comparison to similarly situated employees does not favor Clark in the causal analysis. "Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct." Clark claims Kershner singled her out by admonishing her for bringing her daughter to work during school hours, but allowed other employees to do so. Kershner explained to Clark that her situation differed from other employees because her children were very young, required constant supervision, and could not safely be at school during instructional hours. Clark also alleges she was treated worse than Monterrubio because Monterrubio was not terminated. Kershner placed Monterrubio on a growth plan the same day as Clark, transferred her to another campus, and did not recommend her for a term contract. Monterrubio was not terminated, but there is no evidence her work performance was deficient in as many areas as Clark or that similar behavior continued after she was transferred. Thus, Clark has no evidence of mistreatment compared to similarly situated employees.
Ysleta Indep. Sch. Dist. v. Monarrez , 177 S.W.3d 915, 917 (Tex. 2005) (footnotes and citations omitted).
In a similar vein, no evidence shows the reasons for Clark's termination were false. Principal Kershner first counseled Clark—months before the EEOC charge and even months before the May 14 letter—regarding two main items in the growth plan, specifically, improving communications with co-workers and not bringing her children to work. These problems persisted throughout Clark's employment. Other performance problems arose after Clark filed her charge, such as Clark being untruthful about violation of a standardized-testing-protocol issue, which Clark had admitted. Kershner additionally received reports, which she investigated and credited, that Clark had been neglecting her coaching duties. It was further discovered Clark had not been following lesson plans and maintaining student grades. Kershner also concluded Clark was the root of severe discord and dysfunction in the girls athletic department. Kershner gave Clark a poor performance evaluation based on these and many other performance issues, leading to her termination. An employer is not forbidden from addressing performance issues involving employees who have engaged in protected activity, including following through on known pre-existing issues and addressing existing issues that come to light only during subsequent investigation. Clark denies nearly all of these performance issues, but such denials are insufficient to create a fact issue as to causation. The issue is whether the employer's perception of the problems—accurate or not—was the real reason for termination. The record bears no evidence the stated reasons were mere pretext.
See Bacon v. EDS , 219 Fed.Appx. 355, 358 (5th Cir. 2007).
See Lawson v. Parker Hannifin Corp. , 614 Fed.Appx. 725, 731 (5th Cir. 2015) (finding a prior positive evaluation did not create a fact issue as to retaliation because the employer discovered prior misconduct after the review had been completed); Plumlee v. City of Kennedale , 795 F.Supp.2d 556, 564 (N.D. Tex. 2011) ("Plaintiff is not immune from adverse action for misconduct merely because defendant learned of the misconduct during its investigation of plaintiff's race-discrimination complaint.").
See Jackson v. Cal–W. Packaging Corp. , 602 F.3d 374, 379 (5th Cir. 2010) ("Jackson's assertion of innocence alone does not create a factual issue as to the falsity of Cal–Western's proffered reason for terminating him."); Evans v. City of Hous. , 246 F.3d 344, 355 (5th Cir. 2001) (stating plaintiff "cannot survive summary judgment merely because she disagrees with the [employer]'s characterization of her disciplinary history").
Some evidence shows Alamo Heights did not follow all of its policies in dealing with Clark, but the remaining causation factors weigh heavily in Alamo Heights's favor. We conclude no fact issue exists that Clark would not have been terminated but for her EEOC charge. Thus, immunity has not been waived as to this claim, and Alamo Heights's jurisdictional plea should have been granted.
III. Response to the Dissent
The dissent agrees that the jurisdictional inquiry is not limited to the prima-facie-case element of a circumstantial-evidence case, but diverges from the Court on the resolution of Clark's sexual-harassment and retaliation claims. As an analytical crutch, the dissent begins with a hypothetical that materially alters the facts, presents a misleading and incomplete recitation of Clark's allegations, and inaccurately compresses the time frame. Changing the facts is obviously misleading, but more subtle and significant errors infect the dissent's analysis. Simply stated, the dissent is wrong on the standard of review, the record, and the law.
Post at 818-19.
The dissent takes issue with our characterization of its alteration of the facts, suggesting the "one and only fact" changed—that the harasser is male instead of female—is not material. Regardless of any other factual issues, that change alone is, in fact, material and undermines the dissent's entire analysis. Whatever the legal-sufficiency standard requires, it does not permit courts to present a retelling of events that creates a misleading impression of the record. Nor need we do all the work in correcting the dissent's account. While the dissent purports to be telling "[Clark's] story as she herself would tell it, based on the facts her evidence supports," the dissent is admittedly changing the story and, moreover, omitting the bulk of her story because it is inconvenient to the dissent's analysis. This simply confirms the dissent's inability to adhere to the standard of review.
A. Standard of Review
Though we must view the evidence and its inferences in the light most favorable to Clark, we cannot disregard unfavorable evidence and inferences that reasonable jurors could not. This includes evidence showing the context in which events occurred, regardless of whether it is favorable to Clark.
See City of Keller v. Wilson , 168 S.W.3d 802, 807, 822 (Tex. 2005).
See id. at 811–12.
Though citing the legal-sufficiency standard, the dissent contravenes it by failing to credit evidence a reasonable juror could not disregard and by ignoring City of Keller 's admonitions regarding contextual evidence. What the dissent characterizes as conflicting evidence about Monterrubio's motives for harassing Clark is actually Clark's own account. Clark provides essential context to understanding her own allegations, including her explanations regarding the motives behind Monterrubio's behavior. A reasonable juror could not ignore Clark's account of the "constellation of surrounding circumstances, expectations, and relationships ... not fully captured by a simple recitation of the words used or the physical acts performed." Nor can we.
Disregarding voluminous evidence of context that winnows the inferences a reasonable juror could credit, the dissent isolates discrete acts contrary to the legal-sufficiency standard as painstakingly set forth in City of Keller . Ignoring context is impermissible because it perverts the legal inquiry, much the same way isolating words and phrases from context contorts the meaning and intent of a statute. As explained in City of Keller , context is critical in a legal-sufficiency review because "the lack of supporting evidence may not appear until all the evidence is reviewed in context." So, for example, we observed that an alleged defamatory publication must be viewed as a whole, rather than considering only the false statements and disregarding the true ones. All of a contract's provisions, not just the provisions favoring one party, must be considered when construing its meaning. Similarly, claims for intentional infliction of emotional distress, like sexual-harassment claims, require consideration of the context and parties' relationship. Thus, "[i]n our no-evidence reviews of successful claims, we have invariably reviewed not just evidence showing the conduct was outrageous, but also evidence showing that, in context, it was not."
Id. at 812.
Though purporting to analyze context, the dissent actually distorts it. The dissent recites specific details of a handful of cherry-picked incidents but then fails to account for those details in its analysis, and it ignores the overall relationship between Monterrubio and Clark—two women—in analyzing those few incidents. The dissent argues that gender-based conduct can provide context showing that other facially-neutral conduct is also motivated by gender-based animus. We agree. This analysis depends, however, on first concluding that some conduct is in fact gender based, and the evidence here does not raise a fact issue that Clark's gender motivated any of Monterrubio's conduct. The dissent falls into the trap of assuming, in a same-sex harassment case no less, that any behavior with sexual connotations is automatically gender based. The Supreme Court in Oncale made clear that doing so is incorrect. The dissent's focus on raunchy details rather than the full context of Clark's allegations distorts the legal-sufficiency analysis. This impugns not only the dissent's gender-motivation discussion but also the retaliation analysis, which expressly relies on the same facts in assessing whether Clark's May 14 letter sufficiently alerted Principal Kershner that her complaint was about sex-based discrimination.
Post at 810-11.
B. Sexual Harassment—Faulty Legal Analysis
Though we are all concerned about the plight of sexual-harassment victims, this case must be judged on its own facts and the applicable law, which the dissent overlooks in key respects.
1. This is a Same–Sex Harassment Case
Focusing on the few relatively salacious incidents, the dissent overlooks the fundamental foundation of this case—the harasser and victim are both the same gender. That dynamic creates different inferences than if the relevant parties are opposite sex, which is why the Supreme Court in Oncale went to great pains to lay out ways a same-sex plaintiff can prove sexual harassment.
This dissent never satisfactorily tackles this issue, resorting instead to the artifice of pretending Monterrubio is a man, citing opposite-sex harassment cases, and acting like the same rules automatically apply. They don't. If they did, it would not have taken a Supreme Court case to resolve a circuit split over the threshold issue of whether same-sex harassment was even actionable under Title VII.
Changing the gender of the harasser necessarily alters what inferences are reasonable under the circumstances. For example, a man discussing his marital problems with a female co-worker might raise a reasonable inference that he is flirting with her, whereas a woman discussing her marital problems with a female co-worker, without more, would not. Materially altering the nature of the relationship is a contrivance with zero analytical value.
The closest the dissent comes to analyzing the issue is citing Casiano v. AT & T Corp. for the proposition that if Monterrubio had been male, we would unquestionably find a fact issue exists regarding gender motivation. Casiano did involve a gender-swapping scenario, but of a completely different type—the harasser was female, and the victim was male. That case, which involves an opposite-gender relationship, does not support flipping the gender of the harasser and applying the same inferences to a same-sex harassment case.
Post at 813 n.7 (citing Casiano v. AT & T Corp. , 213 F.3d 278, 285–86 (5th Cir. 2000) ).
See Casiano , 213 F.3d at 280.
2. Defective Legal Analysis Regarding Sexual–Desire Motivation
The dissent concludes a fact issue exists that Monterrubio was motivated by sexual desire towards Clark under Oncale 's first evidentiary route. This analysis is lacking in several respects.
After taking a narrow view of the evidence and crediting gossip and Clark's subjective beliefs, the dissent concludes Clark has raised a fact issue that Monterrubio was motivated by sexual desire. The dissent then asserts that the Court acknowledges sexual-desire evidence exists in this case but disregards it in favor of conflicting evidence regarding other motives. We do no such thing. Rather, we view all competent evidence—not just a handful of the flashiest examples—and conclude the only reasonable inference is that Monterrubio acted for reasons other than Clark's gender.
Post at 809–10.
The dissent gives short shrift to Clark's evidence of other motives for Monterrubio's conduct. The dissent implies these motives, like personal animus or jealousy, are irrelevant because they do not excuse a "steady stream of sexual harassment." As we discussed earlier, this logic is circular because it assumes the conduct is sexually harassing without analyzing whether it actually is.
Post at 815-16.
The dissent focuses on Monterrubio's targeting of Clark for mistreatment, but that is not the issue. The issue is why Monterrubio targeted Clark. Thus, the dissent's Ocheltree v. Scollon Productions citation is inapposite because the plaintiff there—the only woman in an all-male workplace—was targeted because the men wanted to make the only woman present feel uncomfortable. That sex-based motivation is absent here. Contrary to the dissent's implication, we recognize that conduct need not be overtly sexual to support a sexual-harassment claim. But, even as the dissent's own authority recognizes, sex-neutral conduct must still be linked to gender to be relevant to sexual harassment. As one of these cases aptly stated, "[t]he evidence must allow a reasonable jury to conclude that her mistreatment was due to her gender. In this regard, harassment due to personality conflicts will not suffice. Some persons, for reasons wholly unrelated to ... gender, manage to make themselves disliked."
Post at 816–17 (citing Ocheltree v. Scollon Prods., Inc. , 335 F.3d 325, 332–33 (4th Cir. 2003) ).
Post at 814–15.
Post at 814–15 n.9 (citing Ziskie v. Mineta , 547 F.3d 220, 226 (4th Cir. 2008), Boumehdi v. Plastag Holdings, LLC , 489 F.3d 781, 788 (7th Cir. 2007), and Williams v. Gen. Motors Corp. , 187 F.3d 553, 565 (6th Cir. 1999) ).
Ziskie , 547 F.3d at 226.
3. Gender–Specific Anatomy and Characteristics Theory Unsupported and Unworkable
The dissent crafts what it purports to be an established alternative evidentiary path supported by Oncale 's language to prove same-sex harassment. As the dissent tells it, comments and conduct regarding "gender-specific anatomy and characteristics" in and of themselves "constitute discrimination ‘because of’ sex." Under this strict-liability theory, any conduct that " ‘would not have occurred if [the plaintiff] were not a woman’ " automatically meets the because-of-sex test. And this is all without regard to the harasser's motivation for the behavior. That a comment can only be said to a woman does not establish that the speaker was motivated by her gender to make the comment. The dissent fundamentally misunderstands this distinction. Of course, gender-specific conduct is relevant in determining whether the harasser acted because of the plaintiff's gender. But that is the beginning of the inquiry, not the end. In holding otherwise, the dissent misstates the controlling legal authority, ignores contrary authority, and relies on inapplicable authority, leading to a theory that produces absurd results.
Post at 812–13.
Post at 813–14 (quoting Winsor v. Hinckley Dodge, Inc. , 79 F.3d 996, 1000 (10th Cir. 1996) ).
Post at 812–13, 815–16.
Oncale provides, as a second evidentiary route, that an inference of discrimination arises "if a female victim is harassed in such sex-specific and derogatory terms by another woman to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace." The dissent claims that Oncale supports its stand-alone gender-specific-characteristics theory, stating " ‘sex-specific and derogatory terms’ and conduct may support an inference of discrimination because of sex." Oncale clearly tied that language to proving that the "harasser is motivated by general hostility" to the presence of her gender in the workplace. It is disingenuous to position this theory as established and flowing from Oncale when, in reality, it depends on the dissent reading only half of the relevant language.
Oncale and many other courts analyzing same-sex harassment cases have emphasized the importance of evidence establishing the harasser's motive, a fact the dissent ignores. Oncale 's evidentiary routes expressly focus on motive. We cite many same-sex cases, which the dissent does not address, where courts have found contact with gender-specific body parts, including genitals, not to be gender motivated but motivated by other factors.
See id. at 80–81, 118 S.Ct. 998.
Supra note 57.
Instead of relying on Oncale 's full language and other relevant same-sex cases, the dissent cites seven other inapplicable and erroneous authorities. Five of these involve mixed-sex scenarios, which cannot automatically be translated to the same-sex context. For example, two of those four cases involve harassment of a woman in an all-male workplace in ways making clear that women were unwelcome. Others involve conduct directed at women qualitatively different than conduct directed at men. One addresses a failed heterosexual romantic relationship, which was inherently linked to sexual desire, and a series of gender-specific epithets not present here. Two are pre– Oncale cases of questionable authority, particularly Winsor , which relies on a gender-neutral-motive standard inconsistent with Oncale .
Post at 812–13 (citing Redd v. N.Y. Div. of Parole , 678 F.3d 166 (2d Cir. 2012), EEOC v. Fairbrook Med. Clinic , 609 F.3d 320 (4th Cir. 2010), Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798 (11th Cir. 2010), Forrest v. Brinker Int'l Payroll Co. , 511 F.3d 225 (1st Cir. 2007), Rene v. MGM Grand Hotel, Inc. , 305 F.3d 1061 (9th Cir. 2002), Winsor v. Hinckley Dodge, Inc. , 79 F.3d 996 (10th Cir. 1996), and Steiner v. Showboat Operating Co. , 25 F.3d 1459 (9th Cir. 1994) ).
See Forrest , 511 F.3d at 226, 229.
The dissent cites only two same-sex cases for this theory— Redd v. New York Division of Parole and Rene v. MGM Grand Hotel, Inc. —and neither is persuasive. These cases do not, as the dissent states, hold that comments based on gender-specific anatomy is an alternative evidentiary route for proving same-sex harassment under Oncale . Further, Redd holds that repeated rubbing and feeling of intimate body parts (in that case, breasts) can give rise to an inference of sexual advances and desire, hardly a controversial proposition. Those facts are a far cry from this case. Rene also involves qualitatively more extreme physical contact than alleged here, including repeatedly grabbing the plaintiff's testicles and poking fingers in his anus through his clothing. Further, as the Rene dissent points out, the majority there (1) misread Oncale as holding that similar facts in that case could meet the elements of a sexual-harassment claim when, in fact, the Supreme Court remanded for that determination and (2) relied on pre– Oncale lower-court authority discounting the importance of motive, in contravention of Oncale .
Post at 807–08.
678 F.3d 166 (2d Cir. 2012).
305 F.3d 1061 (9th Cir. 2002).
See 678 F.3d at 179, 181.
See 305 F.3d at 1064.
See id. at 1066–67 (relying on Doe v. City of Belleville , 119 F.3d 563, 577–78 (7th Cir. 1997), cert. granted, vacated, & remanded , 523 U.S. 1001, 118 S.Ct. 1183, 140 L.Ed.2d 313 (1998) (vacated and remanded for reconsideration in light of Oncale ) ); id. at 1073–74 & n.2 (Hug, J., dissenting).
The dissent's theory, which essentially imposes strict liability for any gender-specific comment, would lead to absurd results. Any mention of a gender-specific body part in the workplace would be off limits. So a female employee could not discuss breastfeeding struggles with a co-worker. Workplace breast cancer awareness campaigns would likely end, because how could the word "breast" be avoided? Some workplaces, such as a doctor's office, could hardly function under such a rule. And since the dissent's standard includes buttocks as gender-specific body parts, though everyone has them, even Oncale 's example of a football coach smacking players' behinds would be barred. The dissent would prohibit any conversation or conduct that "would not have occurred" to a person of another gender, including such innocuous topics as a pregnant worker's due date or asking to borrow a feminine hygiene product. It defies common sense to think this is what the Legislature had in mind when enacting the TCHRA, and it serves no one's interests to impose such preposterous requirements in the workplace. The dissent agrees that "the TCHRA does not impose ‘strict liability’ for gender-specific comments," but that is the direct, logical result of the dissent's analysis. According to the dissent, the TCHRA limits liability to comments that are uninvited or unwelcome, so that not "every comment focused on gender-specific anatomy can constitute harassment." And yet, that limitation is at odds with the rest of the dissent's analysis, which condemns any gender-specific comment without regard to motive or context.
Post at 816–17.
The dissent claims the Court is suggesting "Monterrubio's conduct was merely ‘sexual horseplay,’ and not sexual harassment." We characterize as horseplay the single incident of grabbing Clark's bottom during the Christmas photo, not all of Monterrubio's conduct. Many courts analyzing same-sex harassment cases have found similar—and in some cases much more severe—conduct to be "horseplay." Contrary to the dissent's implication, these cases do not hold that the horseplay analysis is relevant only to determining whether harassing conduct is sufficiently severe or pervasive and irrelevant to whether the conduct is based on sex. Rather, these cases all specifically reject the plaintiff's claim on the because-of-sex element. Of course, a claim involving alleged horseplay could fail on any sexual-harassment element, including the severe-or-pervasive requirement, but to exclude the gender-motivation element from all horseplay cases, as the dissent's analysis would do, misinterprets the law and is flatly inconsistent with Oncale . It is also noteworthy that the dissent does not explain how the few incidents of conduct the dissent relies on would meet the severe-or-pervasive test, as is required to state a valid claim for sexual harassment.
Post at 811–12 n.5.
See Lord v. High Voltage Software, Inc. , 839 F.3d 556, 562 (7th Cir. 2016) ; King v. Super Serv., Inc. , 68 Fed.Appx. 659, 660, 664 (6th Cir. 2003) ; Collins v. TRL, Inc. , 263 F.Supp.2d 913, 920 (M.D. Penn. 2003) ; English v. Pohanka of Chantilly, Inc. , 190 F.Supp.2d 833, 846 (E.D. Va. 2002).
Post at 811–12 n.5.
The dissent attempts to convert this horseplay incident into evidence of sexual desire by focusing on unconnected circumstances. Yes, the coaches worked in a "middle-school educational environment," but how does that transform a brief bottom grabbing by a same-sex co-worker at an off-site faculty Christmas party into a sexual act? Monterrubio teased Clark about her sexual naiveté, but how is that gender-related? Men can be sexually naïve too. How does Monterrubio brushing Clark's shoulders in a doorway and bumping her with a box indicate the Christmas photo prank showed sexual desire? The dissent is at least making a limited effort to consider context, but it still fails to consider all the context, and the inferences it attempts to draw from incomplete context are illogical.
Post at 813–14.
5. Comparison of Treatment of Male and Female Employees
Monterrubio was rude, crass, and hostile towards seemingly everyone at work, male or female. The dissent misanalyzes the significance of this evidence. How she treats not just Clark but everyone else at work provides important context regarding Monterrubio's motives. The dissent suggests that federal courts reject this approach, but as we discussed earlier, that is an overly simplistic view of the authority. Evidence that shows qualitative differences in a harasser's treatment of men and women can indeed support an inference of gender-based discrimination, as the dissent's cases point out. But if the harasser treats men and women the same, then the conduct is indiscriminate, not discriminatory. Oncale specifically authorized a comparison of the treatment of men and women in a mixed-sex workplace, like the middle school here, as a method to prove same-sex harassment. That comparison here shows substantial, similar inappropriate behavior towards both men and women, giving rise to no inference of discrimination.
Post at 816–17.
See Baldwin v. Blue Cross/Blue Shield of Ala. , 480 F.3d 1287, 1301 (11th Cir. 2007) ; see also Lack v. Wal–Mart Stores, Inc. , 240 F.3d 255, 262 (4th Cir. 2001) ; Jackson v. City of Killeen , 654 F.2d 1181, 1186 (5th Cir. 1981).
Supra section II.B.4.
The dissent's retaliation conclusions suffer from factual distortions and legal inaccuracies.
1. Distorted Facts
The dissent relies on its factual recitation and corresponding because-of-sex analysis to argue Clark's May 14 letter notified Principal Kershner that she was complaining of sex-based discrimination. In addition to the factual flaws that carry over from the standard of review and sexual-harassment analyses, the dissent's retaliation discussion has unique factual concerns.
To determine whether the May 14 letter constitutes protected activity, the obvious focus is on the contents of the letter Clark gave Kershner, not the revised version she gave to the EEOC months later. The dissent acknowledges the letters are not the same but characterizes the differences as "slight[ ]" and "immaterial to the overall analysis." We disagree. As detailed above, the versions contain several substantial variances, including most significantly for the dissent's analysis that the version Clark gave to Kershner did not claim that Monterrubio said she would think of Clark while having sex next to the candle. Nor does either letter contain numerous details the dissent relies on in its carried-over sexual-harassment analysis, including the bottom-grabbing and cupcake-licking incidents and the gossip that Monterrubio and Boyer might be lesbians. The dissent does not attempt to confront the impact of these differences.
Post at 818 n.12.
Supra at 787-88.
2. Faulty Legal Analysis
Built on a foundation of poor factual analysis, the dissent's legal arguments are similarly faulty. Without the issue ever having been raised and with no input from the parties, the dissent would hold that the causation standard the parties have used—that the adverse action would not have occurred "but for" the protected activity—is correct for Title VII retaliation cases but incorrect for TCHRA retaliation cases. According to the dissent, causation is determined by considering whether the protected activity is a "motivating factor" in the employment decision. The dissent could be right that this standard should apply, but when parties have not raised an issue, we should not reach out unnecessarily to decide an issue on our own accord. And we definitely should not do so if, as the dissent implies, the result would be the same either way.
Post at 821–22.
In analyzing whether the May 14 letter is protected activity, the dissent says the merits of the underlying discrimination claim are irrelevant in a retaliation claim. We agree that merits are not the issue, which is why we conduct a retaliation analysis even after rejecting Clark's harassment claim. The issue is not, as the dissent would have it, only whether Clark believed her complaint was about gender discrimination but whether she communicated that belief to Principal Kershner. Based on a reading of the entire, signed version of the letter presented to Kershner, reasonable jurors could not conclude Clark was complaining that Monterrubio mistreated her because of her gender, which she never stated, as opposed to the many other reasons she did state.
Post at 820–21.
See Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 586 (Tex. 2017) ; see also Brown v. United Parcel Serv. , 406 Fed.Appx. 837, 840 (5th Cir. 2010) ; Harris–Childs v. Medco Health Sols., Inc. , 169 Fed.Appx. 913, 916 (5th Cir. 2006).
Having concluded Clark's May 14 letter, in addition to her EEOC charge, were protected activities, the dissent undertakes a causation analysis that is incorrect even if the May 14 letter were protected activity. The dissent does not challenge our analysis that two other complaints before May 14 were not protected activity, yet it relies on one such complaint from March in pointing out that Clark's performance evaluations were favorable until she made that complaint. If the March complaint is not protected activity, a simultaneous negative evaluation cannot, by definition, be retaliation.
Post at 822–23.
The purported harassment alleged in this case is repugnant and unacceptable in a civilized society. But we cannot step beyond the words of the statute or circumscribe the legal-sufficiency standard to vindicate a moral wrong merely because it is appalling. Neither the anti-discrimination laws nor the legal-sufficiency standard permit us to consider evidence apart from its context. This aspect of our de novo review jurisdiction is no novelty. We do not construe statutory language in isolation because context informs intent. We do not review defamatory statements in isolation because context informs meaning. In many different scenarios, we have acknowledged that, with respect to legal sufficiency, context is vital because the absence of evidence may not appear until the evidence is reviewed in context.
See City of Keller v. Wilson , 168 S.W.3d 802, 811 (Tex. 2005).
Adhering to elementary legal-sufficiency principles, we conclude the record bears no evidence from which a factfinder could reasonably infer Clark was subjected to discrimination because she is a woman. On the more novel legal issue presented, we hold that, once Alamo Heights produced evidence rebutting the presumption of retaliation, Clark was required to present at least some evidence that Alamo Heights's stated reasons for terminating her employment were mere pretext for retaliatory intent.
We thus hold that governmental immunity has not been waived, and subject-matter jurisdiction is lacking, because (1) Clark has not raised a fact issue that the alleged harassment was motivated by her gender, (2) all elements of a TCHRA circumstantial-evidence case are jurisdictional facts, not just the prima-facie-case element, and (3) the record bears no evidence that Clark was placed on a growth plan or terminated for engaging in a protected activity. We reverse the court of appeals' judgment and dismiss Clark's claims.
Justice Boyd filed a dissenting opinion, in which Justice Lehrmann joined.
Justice Blacklock did not participate in the decision.
Jeffrey S. Boyd Justice
Imagine this case:
Catherine, an experienced physical-education teacher, began a new job in a small school district near San Antonio. She was excited to join the junior-high faculty and become part of a very reputable community. When Catherine attended the teacher-orientation meeting, she met Andy, a fellow coach at the junior-high school. Andy seemed nice at first, but throughout the training he repeatedly made remarks to Catherine about the assistant principal's breasts, asking if Catherine thought they were "real." Catherine dismissed the comments, but she "wondered how dangerous it was to have a [ ] coach like [Andy] around" the locker rooms of the junior-high school.
Catherine soon began hearing rumors that the school's athletic department frequently experienced "turmoil" and that some of the coaches had a "reputation for partying" and engaging in unprofessional "sexual relations." As it turns out, Andy, who was also new to the school that year, fit right in. He was constantly rude and vulgar, always making inappropriate comments both to and about other coaches, teachers, students, and parents. He used "offensive and derogatory language, threatening and intimidating conduct, offensive jokes," "slurs," and "innuendo." Catherine felt uncomfortable around Andy and thought his behavior was completely inappropriate, especially at a junior-high school. But she did not initially report her concerns because she was not a confrontational person, Andy had told her he was "revengeful" and had "retaliated against others from the workplace in the past," and she had been warned "not to go to" or "cross" the school's principal. Catherine's ability to ignore Andy's conduct quickly deteriorated, however, when he began directing his attention toward her personally.
Andy seemed to have a fascination with Catherine's body, frequently commenting on her intimate body parts in inappropriate and unwanted ways. On one occasion, Andy said to Catherine, "Wow ... I think your boobs are going to pop out of your shirt!" Another time he remarked, "God, Coach, you are wearing those blue pants again? You know I can see your G–string through them. And I can see the dimple in your ass." Over the next few months, Andy continued to comment on Catherine's breasts "almost every day," and encouraged their co-workers to "name the dimples in [her] ass." Later, Andy informed Catherine that the "guy coaches were betting that [her] breasts were fake," and he insisted to her that they were. Andy saturated the coaches' office with sexual comments and conduct, sending "dirty pictures and off-colored" emails; regularly using profane and sexual language; regularly and openly discussing his "sexual deviance" and promiscuity; sharing explicit photos of male genitalia; and repeatedly suggesting that Catherine and another male coworker "would make a good couple" and should "hook up," despite Catherine's protests that she was married and found the suggestions offensive and humiliating.
Andy's sexual and unprofessional conduct towards Catherine reached a pinnacle around the holidays. Before the staff Christmas party, Andy bought "indecent ornaments" and urged Catherine to take one and give it as a gift at the party. Andy later asked Catherine to give him a "tea bag" to decorate his Christmas tree, and then teased her because she hadn't picked up on a sexual innuendo. When Catherine gave Andy a candle in the gift exchange, Andy thanked Catherine and said, "I'm going to f--k next to it and think about you." At the party, Andy and another coworker began "fooling around," "grab[bed] [the] private areas of their bodies for photographs next to the Christmas tree," and engaged in "horseplay" and "extremely dirty dancing." When the group posed together for a photo near the tree, Andy and the coworker reached around and grabbed Catherine's bottom. Catherine left the party early, "embarrassed," "frustrated," and "worried" about Andy's continued harassment, despite her repeated pleas that he stop.
Catherine returned to work in January, hoping that Andy's inappropriate comments and conduct would cease after the holiday break. Instead, they grew worse. When Catherine politely asked Andy how his break went, he replied: "Awesome. It was a F--k Fest. I boinked the entire time." He then asked Catherine if she "got any" over the holidays. Andy's comments about Catherine's breasts and other intimate body parts continued, often within earshot of the school's young students. On one occasion, while Catherine was serving pizza, Andy told Catherine that she "better step back or [she] would get pizza sauce on [her] enormous tits." On another day, Andy commented on "how tan" Catherine's chest was after a spring-break vacation. Later, Andy remarked to other coaches in the office, "I wonder if Coach [Catherine] swallows." And on still another day, when Catherine was eating lunch, a student "poked her head in the [athletic] office and exclaimed ‘I smell shrimp!,’ " to which Andy responded that Catherine should "close her legs."
That spring, Catherine turned to her and Andy's supervisor, the athletic department head, for help. Unfortunately, the department head dismissed Catherine's complaints, and sometimes even joined Andy in the harassing comments and conduct. Finally, in May, Catherine went to the school's principal to report Andy's conduct, but she was so upset that the principal referred her to the school counselor and asked her to submit a written account of her concerns. Catherine complied, submitting a thirteen-page document detailing Andy's conduct. But instead of addressing Catherine's complaints or reporting them to District officials, as the District's sexual-harassment policy required, the principal conducted an informal investigation, issued a written response finding "no evidence supporting the details of [Catherine's] experiences or perceptions," and instructed Catherine to be more proactive about reporting her complaints.
When Catherine returned for the new school year after the summer break, Andy's harassing conduct continued. But now Andy's conduct toward Catherine became more aggressive, to the point of "bullying." Once, Andy told Catherine that he used her razor (which she stored in her locker in the staff bathroom) to shave his genitalia. He repeatedly "bump[ed]" and "block[ed]" Catherine when she attempted to move around the athletic office. Catherine frequently found her personal belongings displaced and her work station disorganized. Catherine became especially disturbed when Andy directed hostile comments toward her five-year-old daughter. At one point, he told Catherine he would "stick a popsicle stick up [the child's] butt" if the child "did not stop annoying" him. On another occasion he threatened to "lock [the child] in the bathroom." As a result of Andy's more aggressive conduct, the friction within the athletic department grew worse, and Catherine continued to report her concerns. In response, the principal called weekly meetings with Catherine, Andy, their department head, and the athletic director.
Soon, the principal began requiring Catherine to attend separate meetings with just the principal and athletic director. These meetings focused on alleged inadequacies in Catherine's conduct. Ultimately, the principal blamed Catherine for the friction, complaining about Catherine's job performance, communication skills, inabilities to get along with others, and bringing her child to work. Because she believed the principal and other District officials did not take her complaints seriously and that they had been "swept under the rug," Catherine filed a complaint with the federal Equal Employment Opportunity Commission (EEOC), complaining that she had been sexually harassed at work and retaliated against for reporting that harassment. Shortly after Catherine filed her EEOC complaint, the principal placed Catherine on a teacher "growth plan" for her alleged failure to communicate, get along with her coworkers, and comply with District policies. The principal also put Andy on a growth plan, but his conduct toward Catherine did not change. As the principal had instructed, Catherine continued to submit complaints, not only about Andy (who, she complained, continued to harass and bully her), but also about their department head and the principal (who, she complained, were retaliating against her for reporting Andy's conduct).
In February of that second school year, Catherine became so ill from the stress of her work environment that her doctor recommended she take several weeks of medical leave. When she returned, however, the principal responded to her most recent complaints by again finding no supporting evidence and blaming Catherine for the problems. Meanwhile, Andy became more aggressive and began pushing Catherine, physically threatening her, and even following her in his car. After Catherine filed formal grievances about this conduct, the principal finally transferred Andy to another school, as Catherine had requested, and declined to recommend that Andy's contract be renewed for another year. But the District also opened an investigation into Catherine's conduct. Based on findings that Catherine had failed to properly complete some lesson plans, consistently maintain grades, respond truthfully regarding questions about a standardized-testing issue, follow her growth plan, and other alleged conduct, the District terminated Catherine's employment that summer.
Assuming these facts are true, I am confident that a reasonable juror could find that Andy made Catherine's work environment "objectively hostile or abusive." See Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). And considering "all of the circumstances," a reasonable juror could also find that Andy harassed Catherine "because of" or "based on" her sex, at least during the first several months Catherine worked at the school. See Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris , 510 U.S. at 23, 114 S.Ct. 367 ). And a reasonable juror could find that the principal and the District retaliated against Catherine because she summoned the courage to complain about Andy's sexual improprieties and harassment.
The Court incorrectly asserts that this hypothetical "materially alters the facts," "chang[es] the facts," and is "wrong on ... the record." Ante at 792 & n.153. Don't be fooled. The one and only fact this hypothetical changes from the record evidence is the fact that the alleged harasser was a woman instead of a man. Whether that change is "material"—in that it negates the permissible inferences a reasonable juror could make based on all the other the facts—is the key legal issue in this case. But to the extent the Court's use of the plural "facts" or its vague reference to "any other factual issues" is intended to suggest that this hypothetical has altered or changed any other facts, the accuser bears the burden of proof. The Court does not and cannot point to a single other fact that the record does not support. And the Court's suggestion that this "retelling" of the events creates a "misleading impression of the record" simply confirms the Court's failure to follow the controlling standard of review. To determine whether the record contains some evidence to support the plaintiff's claims, we must consider the record "in the light most favorable" to the plaintiff, "indulging every reasonable inference" in her favor, and "resolving any doubts against" the defendant. City of Keller v. Wilson , 168 S.W.3d 802, 824 (Tex. 2005). That's what this hypothetical does. It tells the plaintiff's story as she herself would tell it, based on the facts her evidence supports. Although a jury can conclude that her asserted facts are false, we must assume they are true. And although a jury can reject her effort to portray true facts in a light that favors her, we must review the record exactly in that light. In short, we must accept these facts as the facts of this case. The Court negates and ignores them, but facts "are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence." John Adams, Argument in Defense of the British Soldiers in the Boston Massacre Trials (December 1770), reprinted in The Trial of the British Soldiers 101 (Mnemosyne 1969) (quoted in Wentworth v. Meyer , 839 S.W.2d 766, 776 n.1 (Tex. 1992) (Cornyn, J., concurring) ).
The Texas Commission on Human Rights Act (TCHRA) prohibits employers from "discriminat[ing]" against employees "because of" sex. TEX. LAB. CODE § 21.051. The Act also prohibits employers from retaliating against a person who complains about such discrimination. Id. § 21.055. Catherine Clark filed this suit against the Alamo Heights Independent School District, alleging that the District violated both of these TCHRA prohibitions. The District filed a plea to the jurisdiction arguing that governmental immunity bars Clark's claims because the District did not discriminate or retaliate against Clark in any manner that violates the TCHRA. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226–28 (Tex. 2004). In support of its plea, the District submitted evidence that it took adverse actions against Clark and ultimately fired her not because she complained about harassment, but because she violated District policies, had poor communication skills and difficulty getting along with others, and her job performance fell below the District's expectations. Clark responded by submitting evidence including the facts described above in "Andy's" hypothetical case, except that the coach who repeatedly harassed her was a woman named Annie Monterrubio. The trial court denied the District's plea, finding Clark's evidence sufficient to create a fact issue on both of her claims. The District pursued an interlocutory appeal, and the court of appeals unanimously affirmed. Alamo Heights Indep. Sch. Dist. v. Clark , 2015 WL 6163252, at *1 (Tex. App.—San Antonio 2015). This Court granted the District's petition for review and now reverses, holding that "no evidence" supports Clark's claims.
I disagree. On the discrimination claim, a reasonable juror could agree with the Court's conclusion that Monterrubio was just a crude and inappropriate person who harassed Clark because Clark was prude, privileged, unnecessarily sensitive, annoying, and "fun" to bully. But a reasonable juror could instead conclude that Monterrubio harassed Clark because of her sex. And on the retaliation claim, a reasonable juror could agree with the Court's conclusion that the District took adverse actions against Clark because her performance was inadequate. But a reasonable juror could instead find that the District took actions against Clark because she complained about the unlawful harassment. So on both claims, the evidence creates a fact issue that a jury—and not this Court—must decide. Ultimately, the jury might not believe Clark's testimony or might conclude that it does not prove her claims, but I agree with the trial court and the unanimous court of appeals that it is at least sufficient to permit a reasonable juror to conclude that it does. Because the Court holds otherwise, I respectfully dissent.
The TCHRA "clearly and unambiguously waives" governmental immunity, Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 660 (Tex. 2008), but "only for those suits where the plaintiff actually alleges a violation of the TCHRA by pleading facts that state a claim thereunder," Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 636 (Tex. 2012). A TCHRA defendant can file a plea to the jurisdiction to assert that the plaintiff has not met her burden to plead jurisdictional facts, but it can also use the plea to challenge the existence of evidence supporting those facts. Miranda , 133 S.W.3d at 226–27. When that occurs, the jurisdictional issue becomes more complicated because it implicates the claim's merits as well as the court's jurisdiction. Mission Consol. , 372 S.W.3d at 636–37.
When, as here, "the jurisdictional challenge implicates the merits of the plaintiffs' cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists." Miranda , 133 S.W.3d at 227. If the plaintiff pleads facts sufficient to support her claims but the governmental unit disputes those facts, the burden shifts to the governmental unit to present evidence negating the facts alleged. Mission Consol. , 372 S.W.3d at 637, 642. If the government's evidence demonstrates that the allegations are not true, the burden shifts back to the plaintiff to offer evidence disputing the government's evidence. Id. at 635.
The plaintiff is not required to marshal all her evidence and conclusively prove her claim to satisfy this jurisdictional hurdle. Id. at 637. Instead, the trial court's review of the plaintiff's evidence at this stage "generally mirrors that of a summary judgment." Miranda , 133 S.W.3d at 228. If the plaintiff's evidence is insufficient to raise a fact issue, the trial court should grant the plea to the jurisdiction and dismiss the case. Mission Consol. , 372 S.W.3d at 635. But if the evidence is sufficient to create a fact issue, the court must deny the plea and allow the jury to decide the merits. Id.
Here, the trial court found that the evidence creates fact issues and denied the District's plea. The court of appeals unanimously agreed. We now consider the issue de novo. Miranda , 133 S.W.3d at 228. We may grant the plea and dismiss the case only if "the law does not allow reasonable jurors to decide otherwise." City of Keller , 168 S.W.3d at 823. To determine whether a reasonable juror could find in Clark's favor on either claim, we "must examine the entire record in the light most favorable" to Clark, "indulging every reasonable inference" in her favor and "resolving any doubts against the" District. Id. at 824. Accordingly, we must credit evidence that is favorable to Clark "if reasonable jurors could," and disregard any contrary evidence "unless reasonable jurors could not." Id. at 827. Ultimately, as the Court itself acknowledges, we cannot dismiss this case if "some evidence"—that is, "more than a scintilla of evidence"—"raises an inference" that supports Clark's claims. Ante at 771–72, 770–71, 763–64.
Clark's Discrimination Claim
Construing Title VII of the federal Civil Rights Act of 1974, the United States Supreme Court has held that "harassment" constitutes a form of "discrimination" in the workplace. Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Because the TCHRA is modeled after Title VII and designed to support the same objectives, this Court has also recognized that sexual harassment "is a form of sex discrimination prohibited by Title VII and the TCHRA." Waffle House, Inc. v. Williams , 313 S.W.3d 796, 804 (Tex. 2010). The Legislature's "enactment of the TCHRA brought our state in line with the federal government in providing a remedy to parties who suffer indignities from workplace sexual harassment." B.C. , 512 S.W.3d at 285.
B.C. v. Steak N Shake Operations, Inc. , 512 S.W.3d 276, 279 (Tex. 2017) (explaining that the TCHRA "is modeled after federal law with the purpose of executing the policies set forth in Title VII of the federal Civil Rights Act of 1964") (quoting Hoffmann–La Roche Inc. v. Zeltwanger , 144 S.W.3d 438, 445–46 (Tex. 2004) ). Like the TCHRA, Title VII makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e–2(a)(1).
Discrimination claims based on sexual harassment generally take one of two forms: (1) quid-pro-quo harassment, in which the harasser demands sexual favors as a condition for granting employment or its benefits, or (2) harassment that creates a hostile or offensive work environment. See id. at 279. Clark's claim relies on the hostile-work-environment theory. See Harvill v. Westward Communications, L.L.C. , 433 F.3d 428, 434 (5th Cir. 2005) (outlining elements of a hostile-work-environment claim). Under this theory, the plaintiff must establish that the harassment was "severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive," and that the plaintiff herself "subjectively perceive[d] the environment to be abusive." Harris , 510 U.S. at 21–22, 114 S.Ct. 367. The District argues that the trial court had no jurisdiction over Clark's sex-discrimination claim because the evidence cannot support a finding that (1) the harassment Clark suffered was "severe or persuasive" enough to meet this standard, or (2) Clark suffered the harassment "because of" her sex. The Court agrees with the District's second point and does not address the first.
The word "sex" as used in the TCHRA and Title VII refers to the plaintiff's gender. See Barber v. Colo. Indep. Sch. Dist. , 901 S.W.2d 447, 452 (Tex. 1995) (referring to discrimination "because of sex" as addressing "matters of gender discrimination"); see also Harris , 510 U.S. at 22, 114 S.Ct. 367 (characterizing Title VII as prohibiting discrimination against employees "because of their race, gender, religion, or national origin"). But the meaning of the phrase "because of" gender is not as clear. Quantum Chem. Corp. v. Toennies , 47 S.W.3d 473, 480 (Tex. 2001) (stating that the phrase "because of" is "inherently ambiguous"). The TCHRA and Title VII are not "general civility" codes that "prohibit all verbal or physical harassment in the workplace." Oncale , 523 U.S. at 80, 118 S.Ct. 998. A plaintiff must prove not just that the harassment involved words that "have a sexual content or connotations" but also that the harassment occurred "because of" her gender. Id. To establish such a claim, the plaintiff may rely on a variety of "evidentiary route[s]," and each claim must be evaluated on a case-by-case basis. Id. at 81, 118 S.Ct. 998.
Here, Clark—a woman—alleges that Monterrubio—also a woman—harassed her "because of" Clark's gender. The United States Supreme Court held in Oncale that Title VII prohibits same-sex sexual-harassment. Id. at 79, 118 S.Ct. 998. Recognizing that the inferences a jury may reasonably draw from evidence of same-sex harassment may differ from those that a jury may draw from evidence of opposite-sex harassment, the Court provided three examples of the types of evidence that may establish that same-sex harassment occurred "because of" the plaintiff's gender: (1) if "there were credible evidence that the harasser was homosexual" or that the harassing conduct was otherwise "motivated by sexual desire"; (2) if the evidence establishes that the harasser was "motivated by general hostility" to people of the plaintiff's gender in the workplace, such as "evidence that a female victim is harassed" in "sex-specific and derogatory terms"; and (3) if "comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace" supports the conclusion that the harasser acted "because of" the plaintiff's gender. Id. at 80–81, 118 S.Ct. 998.
The federal courts have consistently agreed that Oncale 's three examples "are illustrative, not exhaustive, in nature." E.E.O.C. v. Boh Bros. Const. Co. , 731 F.3d 444, 455 (5th Cir. 2013) (agreeing with "[e]very circuit to squarely consider the issue"). Many have recognized other forms of same-sex gender-based harassment, such as when the harasser acts based on "sex-stereotyping"—that is, the "plaintiff's perceived failure to conform to traditional gender stereotypes." Id. at 453–54, 456 (holding male plaintiff could prove Title VII claim based on evidence that male harasser viewed plaintiff "as insufficiently masculine"). Others have found that same-sex gender-based harassment occurs when the harassing comments or conduct focus on or are motivated by the plaintiff's gender-specific anatomy and characteristics. See, e.g. , Redd v. N. Y. Div. of Parole , 678 F.3d 166, 181 (2d Cir. 2012) (holding evidence that female harasser "touched, rubbed up against, and felt those gender-specific, intimate parts of the [female] employee's body" supports claim for discrimination "because of" sex); Rene v. MGM Grand Hotel, Inc. , 305 F.3d 1061, 1066 (9th Cir. 2002) (holding evidence that male harasser "targeted body part clearly linked to" male plaintiff's "sexuality" supported claim for discrimination "because of" sex). But "[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] ... because of ... sex.’ " Oncale , 523 U.S. at 81, 118 S.Ct. 998.
Here, the evidence would permit a reasonable juror to find that Monterrubio harassed Clark "because of" her gender because (1) Monterrubio was "motivated by sexual desire" for Clark, or (2) Monterrubio's harassment of Clark focused on Clark's gender-specific anatomy and characteristics. Although the evidence certainly would not require a juror to reach that finding, it is at least sufficient to permit a reasonable juror to reach it, and the trial court thus properly denied the District's jurisdictional plea.
A. Harassment because of "sexual desire"
The most obvious scenario of sexual harassment occurs when a coworker sexually propositions or otherwise engages in direct sexual advances to the plaintiff. See 29 C.F.R. § 1604.11(a) ("Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment...."). In Oncale , the Supreme Court specifically recognized that evidence that a harasser was "motivated by sexual desire" would be sufficient to establish that the harasser acted "because of" the plaintiff's gender. 523 U.S. at 80, 118 S.Ct. 998. This method does not necessarily require Clark to prove that Monterrubio is a lesbian, but evidence that Monterrubio "might be sexually oriented toward members of the same sex ... leaves ample room for the inference that" Monterrubio harassed Clark "because" Clark is a woman. Shepherd v. Slater Steels Corp. , 168 F.3d 998, 1010 (7th Cir. 1999). Under this method, Clark may present "evidence suggesting that [Monterrubio] intended to have some kind of sexual contact with [Clark] rather than merely to humiliate [her] for reasons unrelated to sexual interests." La Day v. Catalyst Tech., Inc. , 302 F.3d 474, 479–80 (5th Cir. 2002) (discussing examples of "credible" evidence of "homosexual interest").
Here, the record includes evidence from which a reasonable juror could infer that Monterrubio was motivated by sexual desire, at least during the first several months of Clark's employment. Monterrubio repeatedly called attention to and made comments expressing an interest in Clark's sexual anatomy and sex life. According to Clark, Monterrubio appeared to be "hitting on" her and was "creepy in the way [she] was looking at" her. Clark attributed this conduct to sexual desire, and she became even more concerned when she later heard rumors that Monterrubio was a lesbian and that Monterrubio and their female department head were "sleeping together." Clark stated that she felt so uncomfortable and anxious about Monterrubio's intentions that she "immediately changed ... direction" when walking toward Monterrubio and tried to teach lessons "without facing" her; frequently "left the office" to avoid Monterrubio's attention, taking her lunch breaks and conference period either in the counseling office or in a workroom in the school's library; regularly "ma[d]e it a point to sit as far away from [Monterrubio] as possible, so that [her] back [was] to the coaches" during faculty and department meetings; "almost always [wore] jackets over [her clothes] as a façade"; and "purposefully prop[ped] files and papers on [her] knees to cover [her] chest at meetings," because she felt so self-conscious about her breasts because of Monterrubio's constant comments.
Further supporting Clark's view of Monterrubio's motives, Monterrubio specifically told Clark that she would "think about" Clark while "f--k[ing] next to" the candle Clark had given her. Later, when Clark was meeting with the department head to complain about Monterrubio's conduct, Monterrubio repeatedly interrupted the meeting and then "stood between [Clark and the department head] and started using her tongue to lick seductively the cupcake icing off of a cupcake." After Clark reacted with disgust to what she perceived as Monterrubio's sexual advances, Monterrubio's harassing conduct got "worse" and turned to "bullying." Although this evidence certainly does not conclusively prove that Monterrubio's harassment was motivated by sexual desire, it is nevertheless some evidence that could reasonably support that finding.
The Court dismisses this fact, finding that "this single comment does not indicate sexual attraction to Clark" because "Monterrubio did not say she wanted to have sex with Clark but with someone else." Ante at 777. This conclusion dismisses Clark's understanding of the comment and obscures the nuanced ways people experience and express sexual desire. What other reason would Monterrubio have for "thinking about" Clark while having sexual intercourse other than some form of sexual attraction? Surely she would not be reminiscing on her "desire to tease Clark and make her feel uncomfortable" while in the midst of intimacy with someone else. Ante at 777. Construing this allegation in a light most favorable to Clark , as we must, a reasonable person could infer that Monterrubio's comment evidenced sexual attraction to Clark.
The Court disagrees, not because this evidence would not support the finding but because other evidence appears (to the Court, at least) to contradict it. "Rather than sexual desire," the Court asserts, "the record is replete with evidence that Monterrubio ... engaged in this behavior for other reasons." Ante at 775. But in evaluating the District's plea to the jurisdiction, we must consider all of the evidence "in the light most favorable to" Clark, "indulging every reasonable inference" in Clark's favor and "resolving any doubts against" the District's interpretation of the evidence. City of Keller , 168 S.W.3d at 824. And we may grant the District's jurisdictional plea only if no evidence would allow reasonable jurors to conclude otherwise. Id. at 823. Applying the proper standard, the fact that a jury could conclude that Monterrubio acted "out of sheer dislike" or because she wanted to "humiliate" Clark does not negate the fact that a jury could instead conclude that Monterrubio was motivated by sexual desire, at least during the first several months of her harassing conduct. Dick v. Phone Directories Co. , 397 F.3d 1256, 1265–66 (10th Cir. 2005).
The Court disregards the evidence of sexual desire because, in its view, the "context" of that evidence—that is, other evidence that could support a different motivation—negates any reasonable inference of sexual desire. This approach distorts the applicable standard of review and usurps the jury's role to resolve such factual disputes. The Court is correct that our analysis of a "hostile work environment claim" must necessarily consider "the environment " in which the harassing conduct occurred. Chavez v. New Mexico , 397 F.3d 826, 833 (10th Cir. 2005). As Justice Scalia explained in Oncale :
A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.
523 U.S. at 81–82, 118 S.Ct. 998. Accordingly, courts and juries may properly consider "common sense" and "an appropriate sensitivity to social context" in analyzing whether a harasser's conduct is based on gender. Id. A coach smacking a football player on the buttocks is unlikely to constitute sexual harassment because the context—"head[ing] onto the field"—informs the conclusion that the coach likely intended only to motivate or congratulate the player. But "the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office" because few (if any) social contexts exist where a coworker would be justified in touching a body part as intimate as one's buttocks in the workplace. Id.
Here, Clark's undisputed allegation that Monterrubio "grabbed" her buttocks while posing for a group photo at a work Christmas party clearly falls into the second category. The Court finds that "this isolated instance of intentional physical contact, though understandably upsetting, could not be reasonably interpreted as sexually motivated touching." Ante at 777. In light of the context—the "environment" in which the touching allegedly occurred—I respectfully disagree.But the Court's reliance on "context" evidence goes far beyond the "environment" to which Justice Scalia referred in Oncale . Relying on our decision in City of Keller , the Court asserts that we must disregard the evidence that Monterrubio acted out of sexual desire because, when "all the evidence is reviewed in context," it establishes only that she acted for other reasons. City of Keller , 168 S.W.3d at 811. This approach distorts our holding in City of Keller , in which we recognized that, in some cases, "the lack of evidence may not appear until all the evidence is reviewed in context." Id. As examples, we noted that "publications alleged to be defamatory must be viewed as a whole," that "courts must construe contracts as a whole," that acts "that might constitute outrageous conduct when dealing with a hearing-impaired consumer may be legally insufficient between business parties," and that testimony that is read "out of context" cannot support a verdict. Id. at 811–12. Neither our holding in City of Keller nor the examples we provided support the Court's view that we may simply disregard evidence that Monterrubio acted (at least on some occasions) out of sexual desire because other evidence suggests that she acted (on other occasions) for other reasons. This is true even though significant evidence conflicting with Clark's position may exist.
See City of Keller , 168 S.W.3d at 820–21. ("We have affirmed a bad-faith verdict for legal sufficiency despite ‘significant evidence’ that the insurer acted in good faith. We have found some evidence of lost profits, even though income tax returns showed the contrary. And we have affirmed a jury's negligence finding despite a defendant's evidence asserting it could not have prevented the accident.") (footnotes omitted).
To the contrary, as most federal courts have held, evidence that a harasser sometimes harassed the victim because of her gender provides the "context" in which the jury must evaluate harassment that would otherwise appear to be non-gender-based. See Gregory v. Daly , 243 F.3d 687, 695 (2d Cir. 2001) ("Here, the sex-based character of much of [the harasser's] behavior permits the inference that the remainder of his harassing conduct was also due to [the victim's] sex. And this remains so even though the discriminatory character of some individual incidents might not be evident were they considered in isolation only."); O'Shea v. Yellow Tech. Servs., Inc. , 185 F.3d 1093, 1097 (10th Cir. 1999) ("Facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct."); Winsor v. Hinckley Dodge, Inc. , 79 F.3d 996, 1000 (10th Cir. 1996) ("Although some of the incidents were gender neutral, i.e., the invasion of plaintiff's desk, the blocking of the doors, the door slamming, the hood slamming, and the spiked drink, the other incidents occurred only because plaintiff was a woman.").
I do not, as the Court accuses, fail to "credit" evidence from which a reasonable juror could infer that Monterrubio harassed Clark for reasons other than her gender. See ante at 793. I acknowledge that evidence, and reasonable jurors must also consider it, but they could "credit" it by placing it within the context of the evidence of the "cherry-picked incidents" and "flashiest examples," ante at 793, 795, that undoubtedly constitute "some evidence" that Clark suffered harassment she simply would not have suffered if she were not a woman. The reasonable jurors that should hear this case might conclude that the former negates the latter or that the latter negates the former, but the Court negates the jury by picking one over the other. Using circular logic, the Court agrees that "gender-based conduct can provide context showing that other facially-neutral conduct is also motivated by gender-based animus," ante at 793, but it then credits only the facially-neutral conduct to conclude that the gender-based conduct was not gender-based after all.
That is simply not how courts properly evaluate the sufficiency of the evidence when some evidence could support either conclusion. As the Tenth Circuit explained in a similar case:
This case is difficult because, although the harassment at issue was undoubtedly severe and pervasive, only some of it was gender-based. The question then becomes whether Plaintiffs can use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct on summary judgment. Our precedents say that they can.... This is because what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant work environment. Conduct that appears gender-neutral in isolation may in fact be gender-based, but may appear so only when viewed in the context of other gender-based behavior. Thus, when a plaintiff introduces evidence of both gender-based and gender-neutral harassment, and when a jury, viewing the evidence in context, "reasonably could view all of the allegedly harassing conduct ... as the product of sex and gender hostility," then "it is for the fact finder to decide whether such an inference should be drawn ."
Chavez , 397 F.3d at 833 (emphasis added) (citing Penry v. Fed. Home Loan Bank of Topeka , 155 F.3d 1257, 1262 (10th Cir. 1998) and quoting O'Shea , 185 F.3d at 1097, 1102 ). By "parsing out the various instances of harassment and characterizing them as gender-neutral," the Court "seeks to eschew the proper ‘totality of the circumstances’ test, which is the ‘touchstone’ of our analysis of hostile work environment claims." E.E.O.C. v. PVNF, L.L.C. , 487 F.3d 790, 799 (10th Cir. 2007).
In short, the Court distorts the applicable standard of review. Evidence supporting one fact does not negate evidence supporting a conflicting fact, even if the record contains significantly more of the former than of the latter. City of Keller , 168 S.W.3d at 821. The Court concludes that no evidence supports the inference of gender-based conduct because "only a handful" of the "more than one hundred incidents" Clark complained of involved comments "about female body parts, including Clark's buttocks, the size of her breasts, and whether they are real." Ante at 774. In fact, however, Clark testified that Monterrubio commented about Clark's breasts "almost every day" during their first few months working together. While she did not chronicle and detail all of those comments, she was not required to "marshal" all of her evidence and "prove her claim" to defeat the District's jurisdictional plea. Mission Consol. , 372 S.W.3d at 637. Instead, she merely had to provide "more than a scintilla" of supporting evidence to create a fact issue, and when that evidence of
the context of the harassment leaves room for the inference that the sexual overlay was not incidental—that the harasser was genuinely soliciting sex from the plaintiff or was otherwise directing harassment at the plaintiff because of the plaintiff's sex—then the task of deciding whether the harassment amounts to sex discrimination will fall to the finder of fact.
Shepherd , 168 F.3d at 1011 (emphasis added). Even when "the evidence is undisputed, it is the province of the jury to draw from it whatever inferences they wish, so long as more than one is possible and the jury must not simply guess." City of Keller , 168 S.W.3d at 821. Here, the Court intercepts the jury's responsibility, ignoring evidence that supports a finding of sexual desire because other evidence supports a finding that Monterrubio engaged in the harassing conduct for "other reasons," and failing to consider the reasonable inference that Monterrubio's conduct and motives changed over time as Clark repeatedly responded negatively to Monterrubio's comments and actions. Viewed under the applicable standard of review, I must conclude that the evidence here requires that a jury decide whether Monterrubio harassed Clark out of sexual desire and thus "because of" her gender.
Using similar logic, the Court also suggests that Monterrubio's conduct was merely "sexual horseplay," and not sexual harassment or discrimination. Ante at 776 n.56 (citing Lord v. High Voltage Software, Inc. , 839 F.3d 556, 562 (7th Cir. 2016) ("Sexual horseplay differs from sex discrimination , and Title VII covers only discriminatory conduct.") ). Conduct characterized as "mere sexual horseplay" may indeed be insufficient to support a claim under the TCHRA, but that is because such conduct is not sufficiently "severe or pervasive" to constitute actionable harassment, not because it is not directed at the plaintiff "because of" sex. See Candelore v. Clark Cty. Sanitation Dist. , 975 F.2d 588, 590 (9th Cir. 1992) (per curiam) ("[T]he isolated incidents of sexual horseplay alleged by Candelore took place over a period of years and were not so egregious as to render Candelore's work environment ‘hostile.’ "). The Court does not reach the issue of whether the conduct that Clark's evidence describes was "severe or pervasive." I certainly believe a reasonable jury could conclude it was. If Clark's description of the facts is true, and we must assume it is at this point, the Court's suggestion that Monterrubio's conduct was merely "sexual horseplay" usurps the jury's role to make that determination. I doubt the Court would consider such conduct mere "sexual horseplay" if Monterrubio had been the hypothetical "Andy," and if the evidence establishes anything, it establishes that Cathy certainly did not consider Monterrubio's comments and conduct to be "sexual horseplay." Nor, I believe, would a reasonable juror, even in this same-sex context.
B. Focus on gender-specific characteristics
Harassing conduct "need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." Oncale , 523 U.S. at 80, 118 S.Ct. 998. Rather, the "critical issue" is whether the plaintiff was "exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. (quoting Harris , 510 U.S. at 25, 114 S.Ct. 367 (Ginsburg, J., concurring) ). Based on this principle, federal courts have recognized that harassing comments and conduct that focus on the victim's gender-specific anatomy and characteristics constitute discrimination "because of" sex, even in the absence of any evidence of sexual desire. See, e.g. , Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 811 (11th Cir. 2010) (holding that "gender-specific, derogatory, and humiliating" words and conduct are "sufficient to afford the inference that the offending conduct was based on the sex of the employee"); see also Oncale , 523 U.S. at 80, 118 S.Ct. 998 (noting that "sex-specific and derogatory terms" and conduct may support an inference of discrimination because of sex).
Numerous federal courts have held that harassment "because of sex" includes harassing conduct and comments that focus on "gender-specific, intimate parts" such as a woman's breasts, Redd , 678 F.3d at 181 ; "female body parts," EEOC v. Fairbrook Med. Clinic , 609 F.3d 320, 327 (4th Cir. 2010) ; "women's breasts, nipples, and buttocks," Reeves , 594 F.3d at 804, 811–12 ; and "women's bodies and sexual conduct," Steiner v. Showboat Operating Co. , 25 F.3d 1459, 1463 (9th Cir. 1994). Contrary to the Court's suggestion, these courts have not based their holdings on evidence of harassment that merely includes "sexual content or connotations," ante at 772, but on harassment that focuses specifically on the victim's gender-specific, intimate, sexual attributes. "A raft of case law ... establishes that the use of sexually degrading, gender-specific epithets, such as ‘slut,’ ‘c-nt,’ ‘whore,’ and ‘bitch,’ ... has been consistently held to constitute harassment based upon sex." Forrest v. Brinker Int'l Payroll Co., LP , 511 F.3d 225, 229 (1st Cir. 2007). While general crudeness, sexual jokes and innuendo, and inappropriate conduct may not demonstrate harassment "because of" gender, harassment that focuses specifically on the appearance, size, and smell of a woman's breasts, genitalia, and buttocks does, because that kind of gender-specific harassment simply "would not have occurred if she were not a woman." Winsor , 79 F.3d at 1000.
Courts have utilized the same approach in male-against-male harassment cases. See, e.g. , Rene , 305 F.3d at 1066 (noting harasser's focus on "body parts clearly linked to [a man's] sexuality").
Here, Clark's evidence—if true—establishes that a significant amount of Monterrubio's harassing comments and conduct, especially during the first several months, focused specifically on Clark's gender-specific, intimate, sexual anatomy and characteristics. Clark alleged and testified that Monterrubio repeatedly harassed Clark by commenting on the size and appearance of Clark's "breasts," "boobs," and "tits;" that she also harassed her by making rude comments on the visibility of her "G–string," the "dimples in her ass," and even the "smell" of her genitalia; that she teased and belittled Clark's relative sexual naiveté using sex-specific terms (e.g., "tea bag;" "menage a twat"); and that she "grabbed" Clark's buttocks at the Christmas party. If Clark's harasser had been a male—the hypothetical "Andy" described above—this evidence would undoubtedly permit a reasonable juror to conclude that Clark suffered that type of harassment "because" she is a woman. But just as undoubtedly, at least under the federal courts' application of Oncale , a jury could also reasonably infer from this evidence that the harassment Clark received from Monterrubio "would not have occurred if she were not a woman," Winsor , 79 F.3d at 1000, and thus occurred "because of" Clark's gender.
See Casiano v. AT & T Corp. , 213 F.3d 278, 285–86 (5th Cir. 2000) ("Indeed, we need only hypothetically transpose the sexes of the parties in this case to demonstrate our point: If [Harasser] had been male and [Plaintiff] female, summary judgment evidence supporting allegations that the male supervisor had (1) called the female subordinate ‘honey’ in the presence of other employees; (2) repeatedly demanded that she bring him his coffee, cold drinks, snacks, and a personal item; (3) attempted, in the privacy of his office, to initiate discussions with her about their respective sexual proclivities, preferences, and performances; and (4) in a four-month period, propositioned her (and been rejected) to engage in extramarital sex with him ... would any court conclude that—if proved—such behavior would not constitute severe or pervasive sexual harassment?").
The Court argues that the evidence of gender-specific comments and conduct in this case is insufficient to establish that Clark suffered harassment "because of" her gender. For example, ignoring all of the evidence of Monterrubio's insulting comments about Clark's female body parts, the Court focuses on Monterrubio's "grabbing" of Clark's buttocks, which the Court refers to as an "isolated instance of intentional physical contact." Ante at 777. Downplaying the effect of this incident as merely "understandably upsetting," the Court concludes that Monterrubio's "grabbing" of Clark's buttocks "could not be reasonably interpreted as sexually motivated touching," apparently because males also have buttocks and because it occurred at a Christmas party while a photo was being taken. Ante at 809. Contrary to both our and the U.S. Supreme Court's precedent, the Court's conclusion ignores "all the circumstances" creating the context in which the "contact" allegedly occurred. See Harris , 510 U.S. at 23, 114 S.Ct. 367 (explaining that sexual-harassment claims must be judged in light of "all the circumstances"). In all harassment cases, the inquiry "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale , 523 U.S. at 81, 118 S.Ct. 998. Viewed in the context of Monterrubio's numerous and repeated comments regarding Clark's gender-specific anatomy, sex life, and relative sexual naiveté—all made by a co-worker in a middle-school educational environment—a reasonable juror could conclude that Monterrubio's "grabbing" of Clark's buttocks, as well as her repeated physical "brushing" and "blocking" of Clark around the offices, constituted harassment "because of" Clark's sex.
The Court also disregards aspects of Clark's testimony regarding this event. While it's true that Clark used the words "horseplaying" and "playing" in describing Monterrubio's conduct before the "butt-grabbing" incident, she also stated that she knew Monterrubio "wasn't playing around because that's not the way I play." Clark further described that Monterrubio sneakily "reached around so nobody else would see" when she grabbed Clark. Finally, Clark also stated that she "had already told [Monterrubio and their department head] to stop touching me," and stated that she felt, "upset," "embarrassed," "frustrated," "worried," and "I just felt like getting out of there."
Similarly, the Court asserts that the evidence of gender-specific harassment is insufficient because Monterrubio's harassing conduct, as a whole , was not "focused" on Clark's gender-specific anatomy, "the record does not support a conclusion that ‘the bulk’ " of Monterrubio's harassing comments "relate to the fact that Clark is a female," ante at 779, and many of the incidents Clark described "are not remotely sexual in nature," ante at 774. This argument again distorts the applicable standard of review. The fact that some of Monterrubio's harassing comments and conduct were not focused on Clark's gender-specific anatomy does not negate the evidence that some of them were.
It is well-settled that harassing conduct need not be overtly "sexual in nature" to constitute conduct "because of" gender. Many types of nonsexual harassing activities can be "because of" gender: epithets, slurs, or negative stereotyping; threatening, intimidating, or hostile acts; and written or graphic material that denigrates or shows hostility or aversion toward an individual or group. See Reeves , 594 F.3d at 811–812 ; Mota v. Univ. of Tex. Hous. Health Sci. Ctr. , 261 F.3d 512, 524 (5th Cir. 2001). So the Court is wrong to simply disregard Clark's evidence of actions that are not overtly "sexual in nature." But more importantly, the Court wrongly rejects Monterrubio's clearly "sexual" gender-specific harassing comments and conduct simply because they do not constitute "the bulk" of Monterrubio's harassing behavior. As the First Circuit has explained, because courts must consider the evidence in light of "all the circumstances," they
See, e.g. , Ziskie v. Mineta , 547 F.3d 220, 226 (4th Cir. 2008) (holding plaintiff need not prove she was subjected to sexual advances to prove hostile environment; it is sufficient to prove that she was subjected to hostility because of her gender); Boumehdi v. Plastag Holdings, LLC , 489 F.3d 781, 788 (7th Cir. 2007) (holding offending conduct may rise to level of actionable harassment even if it is "sexist" as opposed to sexual in nature); Williams v. Gen. Motors Corp. , 187 F.3d 553, 565 (6th Cir. 1999) (holding offending conduct need not be sexual in nature to constitute unlawful sexual harassment).
should avoid disaggregating a hostile work environment claim, dividing conduct into instances of sexually oriented conduct and instances of [nonsexual] unequal treatment, then discounting the latter category of conduct. Such an approach defies the [Supreme] Court's directive to consider the totality of circumstances in each case and "rob[s] the incidents of their cumulative effect." Moreover, such an approach not only ignores the reality that incidents of nonsexual conduct—such as work sabotage, exclusion, denial of support, and humiliation—can in context contribute to a hostile work environment, it also nullifies the harassing nature of that conduct.
O'Rourke v. City of Providence , 235 F.3d 713, 730 (1st Cir. 2001) (quoting Williams , 187 F.3d at 561 ). Courts, in other words, should not attempt to separate and weigh evidence of "sexual" harassment against evidence of "nonsexual" harassment when determining whether the harassment creates a hostile work environment. Nor should they do so when deciding whether the record could support a finding that the harassment, or at least some of it, was "because of sex."
Regardless of the evidence in this case, the Court simply rejects the notion that harassment focused on the victim's gender-specific characteristics can constitute harassment "because of sex," at least in same-sex-harassment cases. According to the Court, "the bare act of one woman speaking to another woman about her female anatomy does not establish the comments were gender motivated." Ante at 781. But of course it does, if the first woman is speaking to the second woman about the second woman's female anatomy. That does not mean the statements are inappropriate or constitute harassment, of course, but the first woman could have no motivation to speak to a man about his "female anatomy." The first woman can comment about the second woman's female anatomy only because she is a woman.
Nevertheless, the Court asserts that "a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases." Ante at 780. As many federal courts have observed, however, harassment that focuses on a woman's unique sexual features, which could "not have occurred if she were not a woman," constitutes harassment "because of" her gender even if "the motivation behind plaintiff's mistreatment was gender neutral." Winsor , 79 F.3d at 1000. While the Court asserts that "[w]hy matters," ante at 806-07, the federal courts have concluded that the "fact that [such] abuse was motivated by gender neutral reasons is irrelevant." Id. at 1001. When the victim is subjected to harassment focused on her gender-specific anatomy and characteristics, the harassment occurs "because of" her gender regardless of the harasser's underlying motivation. The issue is whether the defendant harassed the plaintiff "because of" her gender, not why the defendant harassed the plaintiff "because of" her gender. "Whether a harasser picks his or her targets because of a prior intimate relationship, desire for a future intimate relationship, or any other factor that draws the harasser's attention should not be the focus of the Title VII analysis." Forrest , 511 F.3d at 229. "Instead, improper gender bias can be inferred from conduct; if the harassing conduct is gender-based, Title VII's requirement that the harassment be ‘based upon sex’ is satisfied." Id. For this reason, I disagree with the Court's suggestion that the evidence here is insufficient because it merely establishes that Monterrubio was motivated to harass Clark because of personal animus or a personality conflict. Ante at 806-07. General harassment motivated solely by personal animosity may not constitute harassment "because of" sex, but harassment that degrades and humiliates a woman by focusing on her gender-specific characteristics does, regardless of the harasser's motives. "There is no excuse in any work environment for subjecting a female worker to such verbal abuse even if the harasser and the plaintiff did not like each other, especially when this dislike results in a steady stream of sexual harassment." Burns v. McGregor Elec. Indus., Inc. , 989 F.2d 959, 965 (8th Cir. 1993). Although the evidence here could certainly support a finding that Monterrubio ultimately acted out of animosity toward Clark, that evidence does not negate the evidence that much of Monterrubio's harassing conduct focused on Clark's gender-specific anatomy and characteristics, and thus constituted harassment that Clark would not have experienced but-for the fact that she is a woman.
See, e.g. , Shafer v. Kal Kan Foods, Inc. , 417 F.3d 663, 666 (7th Cir. 2005) (holding that plaintiff did not establish that the alleged harassing conduct "reflected more than personal animosity or juvenile behavior"); Pedroza v. Cintas Corp. No. 2 , 397 F.3d 1063, 1069 (8th Cir. 2005) (holding that female co-worker's conduct—grabbing plaintiff's face and attempting to kiss her on mouth and cheek, attempting to hold plaintiff's hand, pointing to her own buttocks and telling plaintiff to "kiss it," and saying that she didn't have a husband and that she wanted plaintiff—failed to demonstrate that sexual desire motivated co-worker's behavior where co-worker had "generally antagonistic relationship" with plaintiff that "preceded any allegedly harassing conduct"); Rizzo v. Sheahan , 266 F.3d 705, 712–13 (7th Cir. 2001) (holding that offensive comments from supervisor expressing sexual interest in plaintiff's daughter were engendered by personal animosity toward plaintiff's husband).
Similarly, the Court makes much of the evidence that Monterrubio "enjoyed being crass and profane and telling dirty jokes and stories to all the coaches, male and female." Ante at 775. The federal courts, however, have rejected the Court's overly simplistic suggestion that harassment cannot be gender-based if the harasser also victimizes people of the opposite gender. "[A] member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct." Reeves , 594 F.3d at 810 ; see also Thomas v. Town of Hammonton , 351 F.3d 108, 117–18 (3d Cir. 2003) (holding that although both male and female employees were subjected to harassing conduct, the conduct supported a finding of gender-based harassment because it contained comments especially disparaging to women and could be intimidating to female employees in a way not experienced by male employees); Ocheltree v. Scollon Prods., Inc. , 335 F.3d 325, 332–33 (4th Cir. 2003) (holding that even though men were also offended by daily stream of sexual and sexist antics, jury could reasonably find that female plaintiff was individual target of harassment); Steiner , 25 F.3d at 1463 (holding that although supervisor abused both men and women, the abuse of women was different because it "relied on sexual epithets, offensive, explicit references to women's bodies and sexual conduct"). On this record, a reasonable juror could easily conclude that the crude jokes and teasing Monterrubio directed toward male employees and even other female employees was nothing like the personalized, overtly sexual harassment she directed at Clark. Even the Court acknowledges that "Monterrubio may have directed more of her attention to Clark than other individuals." Ante at 776. And even if the evidence established that Monterrubio "used sexual epithets equal in intensity and in an equally degrading manner against male employees," she "cannot thereby cure" her conduct towards Clark. Steiner , 25 F.3d at 1464 (internal quotations omitted). Instead, it might simply mean "that both men and women" who worked with Monterrubio "have viable claims ... for sexual harassment." Id.
Finally, the Court raises an absurd absurd-consequences argument, asserting that if same-sex harassment focused on the victim's gender-specific anatomy can constitute harassment "because of sex," then "a female employee could not discuss breastfeeding struggles with a co-worker," and "[w]orkplace breast cancer awareness campaigns would likely end." Ante at 797. Of course, the Court's concerns are unfounded because the TCHRA does not impose "strict liability" for gender-specific comments; it only prohibits "uninvited" or "unwelcome" harassment "because of sex." Woods v. Delta Beverage Grp., Inc. , 274 F.3d 295, 298 (5th Cir. 2001) ; Harvill , 433 F.3d at 434. Harassing comments and conduct focused on the victim's gender-specific anatomy can constitute harassment "because of" sex, but that does not mean that every comment focused on gender-specific anatomy constitutes harassment.
Based on the evidence in this record, a reasonable juror could find that Clark simply would not have experienced the harassment she alleges without her female-specific characteristics, and thus her female gender. And a reasonable juror could easily conclude that the conduct and comments about which she testified would cause pain, humiliation, and discomfort rooted in the reality that her mistreatment was inextricably linked to her gender and female sexuality. Monterrubio's conduct towards Clark, if true, simply "is not a manner in which women ‘routinely interact;’ and it is not conduct that is normal for the workplace." Redd , 678 F.3d at 179 (quoting Oncale , 523 U.S. at 81, 118 S.Ct. 998 ).
In short, if Monterrubio was jealous of Clark or had animosity towards her, or if she was simply a crude and mean person who enjoyed teasing and insulting others, she could have chosen many ways to harass Clark. But at least some evidence establishes that Monterrubio's efforts to humiliate Clark were effective because she followed a well-beaten path: she relied on the all-too-common tactics that have historically been used to degrade and deter women in the workplace. Because a reasonable juror could conclude from this evidence that Clark suffered harassment because of sexual desire or because of her gender-specific anatomy and characteristics, I would hold that the evidence is sufficient to create a fact issue on whether Clark suffered discrimination "because of sex" under the TCHRA.
Clark's Retaliation Claim
In addition to prohibiting discrimination, the TCHRA makes it an unlawful employment practice to "retaliate" against a person who complains about such discrimination. TEX. LAB. CODE § 21.055. Title VII also contains an anti-retaliation provision. See 42 U.S.C. § 2000e–3 ("It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."). Accordingly, we look for guidance from the U.S. Supreme Court and other federal courts in analyzing Clark's retaliation claim. See B.C. , 512 S.W.3d at 279 ("Texas courts look to analogous federal law in applying the state Act.") (quoting Waffle House , 313 S.W.3d at 804 ).
In this Court, Clark's retaliation claim presents two separate issues. First, we must clarify what Clark's evidence must establish to obtain the TCHRA's waiver of immunity and thus the trial court's jurisdiction. On this issue, I agree with the Court's holding that all three steps of the McDonnell Douglas evidentiary framework apply to the jurisdictional inquiry. Ante at 764. Thus, to avoid dismissal for lack of jurisdiction, Clark had to establish not only her prima-facie case of retaliation, but also that the District's alleged non-discriminatory reasons constituted a pretext for discrimination. See Miranda , 133 S.W.3d at 228. In concluding that she failed to meet that burden, the Court first concludes that the TCHRA does not protect some of Clark's activities in response to Monterrubio's harassment, and then concludes that no evidence could support the finding that the District took adverse actions "because of" the actions the TCHRA does protect. I disagree on both points.
Under McDonnell Douglas , a plaintiff who relies on indirect or circumstantial evidence from which the jury must infer the defendant's motives must first establish with that evidence that the defendant treated the plaintiff adversely because the plaintiff engaged in a protected activity. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 585 (Tex. 2017) ; Mission Consol. , 372 S.W.3d at 634. If the plaintiff meets that burden, the defendant must then articulate a "legitimate, nondiscriminatory reason" for its actions; and if the defendant meets that burden, the plaintiff must establish that the employer's articulated reason is a "pretext" to mask unlawful discrimination. McDonnell Douglas , 411 U.S. at 802–04, 93 S.Ct. 1817. The presumptions that arise when a plaintiff establishes a prima-facie case under the first step no longer apply if the defendant presents evidence of a non-discriminatory reason under the second step. See Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("[T]he presumption of discrimination ‘drops out of the picture’ once the defendant meets its burden of production....") (quoting St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ). In that case, the plaintiff can only establish a prima-facie case by showing that the defendant's non-discriminatory reasons are a pretext under the third step. Accordingly, I agree with the Court that all three steps of the McDonnell Douglas analysis apply to the determination of whether the plaintiff has established a prima-facie case sufficient to fall within the TCHRA's immunity waiver. Ante at 818.
A. Protected activities
The Court first concludes that none of Clark's "internal complaints" about Monterrubio's harassment "constitute protected activity under the TCHRA," so her only TCHRA–protected activity was the formal charge she sent to the EEOC in October 2008. Ante at 788. I respectfully disagree. The record includes evidence that in May 2008 (near the end of her first year with the District) Clark went to the school principal, Stephanie Kershner, in such emotional distress that she was unable to effectively communicate the details of her complaint. Kershner took Clark to the counseling office and directed her to write down the details of her complaint so that Kershner could investigate it. As requested, Clark later submitted a thirteen-page written report detailing her harassment complaints. Clark expressly complained in the letter that Monterrubio:
As the Court notes, the record includes two versions of Clark's May 2008 letter—one bearing Clark's signature, which she submitted to Kershner, and another version that Clark attached to her EEOC charge. Ante at 801 n.121. While the two versions differ slightly in substance, those differences are immaterial to the overall analysis. Specifically, the version Clark submitted to Kershner does not include a paragraph describing Monterrubio's comments during new-teacher orientation, does not include a paragraph describing Monterrubio as desiring to "tease and humiliate" Clark, does not describe an incident where Monterrubio repeatedly encouraged Clark to "hook up" with another teacher, and does not describe an incident where Monterrubio remarked that Clark had a "tan chest" after spring break. Importantly, however, the letter Clark submitted to Kershner does include her complaint that, after Clark gave her a candle at the gift exchange, Monterrubio "made a remark indicating she was going to make love next to the candle when it was lit up in her apartment." Thus, the Court should consider this statement, as well as the myriad others included in her initial letter, as evidence that Clark alerted Kershner that she reasonably believed she was reporting sexual harassment.
• "continues to use offensive and derogatory language, threatening and intimidating conduct, offensive jokes, name calling, insults, slurs, and rumors about [Clark]";
• stated "Wow, Coach Clark, I think your boobs are going to pop out of your shirt";
• stated "God, Coach, you are wearing those blue pants again? You know I can see your G–string through them. And I can see the dimple in your ass";
• "continued to talk about [Clark's] bottom and [her] breasts";
• "informed [Clark] that the guy coaches were betting that [Clark's] breasts were fake" and "insisted to me that they were";
• "purchased an indecent ornament for [Clark]," and grabbed her "private areas" in front of Clark;
• "asked [Clark] for items to decorate [Monterrubio's] own tree, like a teabag ... using the items in a perverted way" to create "a Christmas tree adorned with items signifying her sexual deviance" and "showed [Clark] a photo of the tree";
• "When receiving a candle that [Clark] gave to [Monterrubio], [Monterrubio] made a remark indicating she was going to make love next to the candle when it was lit up in her apartment";
• stated to Clark that Monterrubio's Christmas break was "Awesome. It was a F--ck Fest. I boinked the entire time";
• watched Clark open boxes of pizza and remarked that Clark "better step back or [Clark] would get pizza sauce on [Clark's] enormous tits";
• "received a photograph on [Monterrubio's] cell phone during a PE class" and showed Clark "the picture of her boyfriend's private area. He had taken and sent her a photograph of his genitals, which he manipulated into a heart shape";
• "gloat[ed] aloud to all the coaches about having three nights in a row with three different men," telling Clark "Don't act so naïve, ‘S’ stands for slut"; and
• remarked that Clark should "[close] her legs" in response to a student saying, "I smell shrimp!"
The Court concludes that "this letter was not sufficiently specific to put Kershner on notice that Clark was complaining of harassment based on her gender." Ante at 786. I do not understand how the Court reaches this conclusion. The Court correctly notes that Clark's letter contained many complaints of conduct that were not sexual in nature and not covered by the District's sexual-harassment policy, such as complaints about Monterrubio's teaching ability, unprofessional treatment of students and parents, and remarks about controversial topics such as atheism and abortion in the workplace. The fact that some of Clark's complaints did not implicate actionable conduct, however, does not negate her numerous complaints of sexually inappropriate and gender-specific conduct in violation of the District's sexual harassment policy and the TCHRA. In conclusion, the letter stated, "Not only do [Monterrubio's] actions unreasonably interfere with my work performance, but they are so severe, persistent, and pervasive they create an intimidating, hostile, and offensive working environment in which I refuse to be subjected to anymore." A reasonable person could conclude that Clark's letter contained a report of sexual harassment. And any properly trained school administrator, which Kershner surely was, could reasonably conclude that a report containing these allegations—including specific quotes from the District's sexual-harassment policy —constituted a report of sexual harassment. In fact, Kershner agreed in her testimony that Clark's allegations against Monterrubio (including the inappropriate emails she attached to her letter), if true, would violate the District's sexual-harassment policy.
Specifically, Clark stated:
• "[Monterrubio] exposes us all to a type of behavior that is not only inappropriate, but illegal."
• "I have been forced to work in a hostile work environment ... to the extent that I am unable to perform the duties expected of me at the Junior School."
• "Ann continues to use offensive and derogatory language, threatening and intimidating conduct, offensive jokes, name calling, insults, slurs, and rumors about me."
As relevant to Clark's claim, the District's sexual-harassment policy states: "The District prohibits discrimination, including harassment, against any employee on the basis of ... gender...." The policy goes on to define "[p]rohibted harassment" as "physical, verbal, or nonverbal conduct based on an employee's ... gender ... when the conduct is so severe, persistent, or pervasive the that conduct:
1. Has the purpose or effect of unreasonably interfering with the employee's work performance;
2. Creates an intimidating, threatening, hostile, or offensive work environment; or
3. Otherwise adversely affects the employee's performance, environment, or employment opportunities."
Examples of prohibited harassment include "offensive or derogatory language directed at another person's ... gender identity; ... threatening or intimidating conduct; offensive jokes, name calling, slurs, or rumors; [and] physical aggression or assault...." The policy further defines "Sexual Harassment" as "unwelcome sexual advances; requests for sexual favors; sexually motivated physical, verbal, or nonverbal conduct; or other conduct or communication of a sexual nature" when "[s]ubmission to the conduct is either implicitly or explicitly a condition of an employee's employment" or the conduct "is so severe, persistent, or pervasive that it has the purpose or effect of unreasonably interfering with the employee's work performance or creates an intimidating, threatening, hostile, or offensive work environment."
The Court goes on to state that even if the letter contained some indication of sexual harassment, "a jury could not reasonably conclude Clark alerted Principal Kershner that she thought Monterrubio was acting out of sexual desire towards her or that her conduct otherwise constituted sex-based discrimination."Ante at 787. But an employee's complaint about a discriminatory practice is a protected activity irrespective of the merits of the underlying discrimination claim. See San Antonio Water Sys. v. Nicholas , 461 S.W.3d 131, 137 (Tex. 2015) ; City of Waco v. Lopez , 259 S.W.3d 147, 151 (Tex. 2008). To establish that an employee opposed a discriminatory practice, the employee "need only show that she had a ‘reasonable belief that the employer was engaged in unlawful employment practices.’ " Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 348 (5th Cir. 2007) (quoting Byers v. Dall. Morning News , 209 F.3d 419, 428 (5th Cir. 2000) ). Thus, the inquiry is whether Clark showed that a jury could reasonably conclude that Clark's letter alerted Kershner that Clark reasonably believed Monterrubio's conduct constituted sex-based discrimination. For all of the reasons recited above and in Part III of this opinion, I would find that Clark satisfied this requirement. Accordingly, I would find that Clark engaged in at least two TCHRA–protected activities: her May 2008 letter to Principal Kershner, and her October 2008 EEOC Complaint.
The evidence undoubtedly supports a finding that the District took adverse employment actions against Clark by placing her on a growth plan and then later terminating her employment. But the Court concludes that the record contains no evidence on which a reasonable juror could conclude that the District took those actions because of Clark's complaints. Ante at 816. As a preliminary matter, without analysis and relying only on Title VII cases, the Court applies the "but-for" standard of causation as articulated by the U.S. Supreme Court in Burdine and more recently in Nassar . Ante at 789 n.141 (citing Burdine , 450 U.S. at 252–53, 101 S.Ct. 1089 ; Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 352, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) ). Despite the fact that we "have yet to determine the appropriate causation standard in a TCHRA retaliation claim," the Court proceeds in this manner "because the parties have litigated the case under the but-for standard." Ante at 783. Although the U.S. Supreme Court—applying the federal Age Discrimination Act and Title VII—adopted the but-for causation standard, this Court—applying the TCHRA—previously adopted the less-restrictive motivating-factor standard in Quantum Chemical , which involved a claim of age discrimination under the TCHRA. 47 S.W.3d at 474. There, we held that under the plain text of the TCHRA, "a plaintiff establishes an unlawful employment practice by showing that discrimination was ‘a motivating factor’ for the practice." Id. Because of the significant differences between the language and structure of the TCHRA and Title VII, I would hold that the proper causation standard for a retaliation claim under the TCHRA is the motivating-factor test, at least at the summary-judgment or plea-to-the-jurisdiction stage. Even applying the but-for causation standard, the record contains ample evidence that the District took adverse employment actions against Clark because of her protected activities. The Court states that Clark's evidence of temporal proximity between her protected activities and the adverse actions fails to satisfy this element because "uncontradicted evidence establishes Kershner and a human resources representative made the decision to implement the growth plan before Clark filed" her EEOC complaint. Ante at 790. The Court reaches this conclusion, however, only because it refuses to consider Clark's May 2008 letter as a protected activity. Considering that letter, as I believe we must, a reasonable juror could find that Clark would not have been placed on a "Teacher in Need of Assistance" growth plan if she had not submitted her letter reporting Monterrubio's sexual and gender-based harassment.
In the TCHRA, both the section that prohibits status-based discrimination and the section that prohibits retaliation for protected activities appear in the same subchapter, entitled "Unlawful Employment Practices." Tex. Lab. Code §§ 21.051, .055. The subchapter on "Application" expressly provides:
Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that ... sex ... was a motivating factor for an employment practice, even if other factors also motivated the practice , unless ... sex ... is combined with objective job-related factors to attain diversity in the employer's work force.
Id. § 21.125(a) (emphasis added). And the section that prohibits retaliation expressly includes retaliation under "unlawful employment actions." See id. § 21.055. The statute's plain text applies the "motivating factor" standard to all "unlawful employment actions" unless otherwise provided. Unlike Title VII, nothing indicates that retaliation cases are different. See Quantum Chem. , 47 S.W.3d at 479 ("There are no relevant textual restrictions on the applicability of this section [21.125(a) ] to unlawful employment practices.").
Clark was a physical education teacher for the District from the summer of 2007 until her termination in July 2009. Clark had been a teacher for over ten years prior to joining the District's staff, and all the evidence suggests that Clark had an excellent reputation as an educator and coworker. The uncontroverted evidence establishes that Clark continued to receive excellent reviews until she started complaining about the alleged harassment in March 2008. Once she started to complain about the harassment, her supervisor and her principal started to identify ways in which her own performance fell short, and the more complaints she made, the more inadequacies they identified.
Under the District's sexual-harassment policy, Kershner was required to submit Clark's complaint to the District's EEOC coordinator, who then had an obligation to investigate (or assign an administrator to investigate) Clark's complaint. Kershner testified that she hoped the conflict between Clark and Monterrubio would die down over the summer break, but it did not. When the teachers returned to campus in the fall, Clark again allegedly suffered harassment from Monterrubio, and continued to report these events to her department head, to the guidance counselor, and to Kershner. Clark was placed on a growth plan in October 2008. The uncontroverted evidence establishes that the District's stated reasons for placing Clark on the growth plan were (1) "failing to communicate" with her co-workers and supervisors, and (2) failing to adhere to the District's grievance policies. In other words, but-for Clark's failure to communicate with her co-workers—specifically Monterrubio and their department head—and failure to adhere to the District's grievance policies, she would not have been placed on a growth plan. Yet the District's human resources director and EEOC coordinator testified that, if evidence existed that Monterrubio and their department head were harassing Clark, it would be unjustified to discipline her for failing to communicate with her coworkers. The human resources director similarly testified that if Clark alleged that her department head did not take her report of harassment seriously or adequately investigate the complaint, it would be unjustified to discipline her for failing to communicate with her supervisor and follow the District's grievance policies. This is sufficient evidence that the District's stated reasons for placing Clark on a growth plan were "pretextual."
Under the District's harassment policy, "Any District supervisor who receives a report of prohibited conduct shall immediately notify the appropriate District official ... and take any other steps required by this policy." Appropriate District officials are "the Title IX coordinator, the ADA/Section 504 coordinator, and the Superintendent." Specifically, "[r]eports of discrimination based on sex, including sexual harassment, may be directed to the Title IX coordinator." At all times relevant to this appeal, the District designated the Director of Personnel/Public Information as its Title IX coordinator.
Finally, no one disputes that a grievance arising out of a violation of the District's sexual-harassment policy is not subject to the District's ordinary policy and procedures for submitting a non-discriminatory grievance claim. Both Kershner and the human resources director conceded that Clark complied with the District's sexual-harassment policy when she reported her concerns to the principal, Kershner. Kershner and other District officials, however, failed to follow the District's policy. Clark made her initial report of sexual harassment in May 2008 and filed her EEOC complaint in October 2008, but Kershner—who was never designated as an administrator authorized to investigate a sexual-harassment complaint, per the District's policy—did not engage in any authorized investigations until the spring of 2009. This evidence is significant not only because it is evidence of the close timing and retaliatory nature of the District's actions, but also because this Court has held that an employer's failure to adhere to relevant established company policies is probative in a retaliation suit. See City of Fort Worth v. Zimlich , 29 S.W.3d 62, 69 (Tex. 2000).
Of course, the jury may not believe any of this evidence, may draw different inferences from it, or may completely discount its relevance for one reason or another. Like the Court, I am particularly sympathetic to the difficulties Kershner faced in dealing with Monterrubio's alleged conduct and Clark's reactions to that conduct. Considering the evidence of Clark's own performance failures and the difficulties Kershner faced in maintaining a productive educational setting in the midst of all the conflict, I too might conclude that the District took adverse actions against Clark solely for non-retaliatory reasons. But because the record contains evidence to the contrary, a jury must decide that issue, not the Court. Regardless of whether we apply the motivating-factor test or the but-for test for causation, the record includes evidence from which a reasonable juror could conclude that the District placed Clark on a growth plan and later terminated her employment because of Clark's complaints about Monterrubio's sexual harassment. As a result, the evidence establishes a fact issue regarding the causal link between Clark's protected activity and the adverse employment actions.
As this Court observed in City of Keller ,
judges and lawyers often disagree about legal sufficiency in particular cases, [but] the disagreements are almost always about what evidence jurors can or must credit and what inferences they can or must make. It is inevitable in human affairs that reasonable people sometimes disagree; thus, it is also inevitable that they will sometimes disagree about what reasonable people can disagree about.
City of Keller , 168 S.W.3d at 827–28 (footnotes omitted). Despite this truism, "[i]f the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement." Id. at 822. I would hold that Clark met her burden of producing evidence on each element of her discrimination and retaliation claims under the TCHRA. Whether she can ultimately prevail on those claims is a question for the jury. But because Clark's evidence creates a fact issue on each of the necessary elements, the TCHRA's waiver of immunity applies to Clark's case, and sovereign immunity does not bar the trial court's jurisdiction over her claims. Accordingly, I would affirm the decisions of the trial court and the court of appeals. Because the Court holds otherwise, I respectfully dissent.