AUSTIN – A female teacher who complained that a female colleague subjected her to sexually tinged comments and unwanted touching will not get her case before a jury because she failed to show that the harassment was gender-based, the Texas Supreme Court decided Friday.
The court also said the middle school coach failed to show her termination was retaliation for complaints she made to supervisors and the federal Equal Employment Opportunity Commission.
The 6-2 ruling in a same-sex harassment lawsuit lands in the midst of a national conversation about workplace sexual harassment. Adding to the drama, the majority opinion accuses the dissenters of using fake facts to make their case.
The ruling will make it much more difficult for employees to claim retaliation for reporting harassment, said Brendan McBride, who represents the teacher who sued. He said the most disturbing aspect of the majority opinion is the treatment of the dissenting justices’ view of the facts as “unreasonably wrong.”
“This will have long term, far reaching effects on the rights of people in the workplace,” said McBride. “It’s very disturbing that the majority was willing to sell out protections for workers at such an important time.”
The school district was represented by Robert Schulman of San Antonio’s Schulman, Lopez, Hoffer & Adelstein.
Writing for the majority, Justice Eva Guzman said the accused coach may have engaged in bullying, but the evidence did not show the behavior was directed toward Catherine Clark because she is female.
“Anti discrimination laws do not guarantee a pleasant working environment devoid of profanity, off color jokes, teasing, or even bullying,” said Guzman. “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.”
Justices Jeffrey Boyd and Debra Lehrmann dissented from the ruling. Justice Jimmy Blacklock did not participate in the decision.
Boyd said the evidence was sufficient to permit a reasonable juror to find that Clark’s harassment was gender-based because the accused harasser was either motivated by sexual desire or focused on Clark’s gender-specific anatomy and characteristics.
Both opinions in Alamo Heights ISD v. Clark describe in graphic detail a chaotic girls athletic department at a San Antonio middle school. The claims made by Clark are similar to ones commonly heard in cases involving a woman being harassed by a man. In this case, however, the court struggled to evaluate Clark’s claims of a same-sex harasser who appears to be heterosexual.
Clark began working at the school in the 2007-08 school year and said another newly hired coach made comments about her breasts and whether they were real. Among other incidents that year, Clark said the co-worker and a third female coach clowned around in an indecent manner at a faculty Christmas party and grabbed Clark’s buttocks during a group photo.
Near the end of the school year, an emotionally distraught Clark went to the principal’s office with her complaints. A few days later she returned with a 13-page written report.
After failing to substantiate the incidents, the principal told Clark to report any future problems immediately and to stop bringing her young children to work because they were a source of discord with her colleagues.
During the next school year Clark continued to complain to the principal in writing. She said the co-worker was again commenting about Clark’s body, making rude comments and bragging of sexual activity with men. The principal responded by placing both teachers on personal growth plans.
In October 2008, before her plan was implemented, Clark filed a charge of discrimination with the EEOC, alleging both female co-workers sexually harassed her. She also claimed the district had retaliated against her after she complained.
During the next several months, Clark made more written complaints to the principal and was granted a personal leave. The principal investigated and reported no evidence of retaliation and that Clark was responsible for any difficulties with co-workers.
Within one week after returning from leave, Clark filed a formal grievance accusing her main antagonist with pushing her from behind during class and other incidents of daily bullying.
The principal determined the grievance had no merit but decided to transfer the accused coach. Even with the woman gone, Clark’s conflicts with co-workers intensified and her job performance suffered, according to the court. Clark was fired in August 2009.
She sued the school district, asserting sexual harassment and retaliation claims under the Texas Commission on Human Rights Act. The district said it had legitimate nondiscriminatory reasons to dismiss Clark.
On the eve of trial, the school district argued that Clark had not met her burden to waive the district’s sovereign immunity. The trial court denied the plea to the jurisdiction and San Antonio’s 4th Court of Appeals affirmed, finding the record contained some evidence that the alleged harassment was gender motivated.
Although the parties disagreed about whether Clark must present evidence that the harasser was homosexual, the court said the record suggests reasons other than sexual desire for the behavior.
“Sexually tinged comments may be motivated by other reasons, such as personal animus, jealousy, or the desire to irritate or bully,” Guzman said. “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.”
Boyd said evidence that the alleged harasser could have acted out of animosity toward Clark does not negate the evidence that much of the “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.”
Boyd began his dissent by presenting a scenario similar to one Clark says she faced, but involving a male colleague, to make the point that such circumstances would likely be considered gender discrimination. Guzman said the hypothetical “materially alters the facts, presents a misleading and incomplete recitation of Clark’s allegations, and inaccurately compresses the time frame.”
The case is Alamo Heights Independent School District v. Catherine Clark 16-0244