Being called skinny can equate to a sexual harassment charge says 1st Court of Appeals

Texas Department of Aging and Disability Services v. Esther Iredia, 01-13-00469-CV (Tex. App. – Houston [1st Dist.], March 6, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction by Texas Department of Aging and Disability Services (“DADS”) in an employment discrimination case (gender, race/national origin). The Court of Appeals reversed as to the race/national origin claims and affirmed as to the gender discrimination.

Ireda (a Nigerian woman) was a retardation professional for DADS who was terminated in 2010 for allegedly falsifying reports. She filed this lawsuit citing to numerous utterances relating to the fact she was skinny and needed to eat. DADS filed a plea to the jurisdiction which was denied, so it appealed.

With regards to the sexual harassment claim, DADS asserted it presented sufficient evidence to put into question jurisdictional facts and Ireda did not counter with sufficient evidence to create a fact issue on jurisdiction. The court, after going over various standards, focused on whether the cumulative effect of the offensive behavior is so severe or pervasive that it destroys an employee’s opportunity to succeed in the workplace. Ireda presented evidence the conduct (being called skinny) occurred on a daily basis for 3 years, which the court held was “pervasive.” The court then found that the conduct, even if true, was not “severe.”  However, sexual harassment claims can be brought by either severe or pervasive behavior. The references to her being “skinny” could be sexual in some circumstances, so it was proper to deny the plea as to the sexual harassment charge. However, after reviewing the evidence, the court held Ireda was unable to establish she was treated differently than similarly situated individuals based on race/national origin. So the plea should have been granted for those claims.

If you would like to read this opinion click here. Panel: Justices Jennings, Sharp, and Brown. Opinion by Justice Sharp. The attorney listed for Iredia is Mark C. Schuck.  The attorney listed for DADS is Madeleine Bullard Connor.