High frequency of non-severe sexual same-sex comments can still qualify as sexual harassment says 4th Court of Appeals

Alamo Heights ISD v. Catherine Clark, 04-14-00746-CV (Tex. App. – San Antonio, October 21, 2015)

This is a discrimination/retaliation employment suit in which the Fourth Court of Appeals affirmed the denial of the Alamo Heights ISD (“AHISD”) plea to the jurisdiction.

Clark was a coach for the AHISD. Clark asserts her fellow female coach, Monterrubio, began sexually harassing her by making continuous comments about her body. According to Clerk, when she reported Moterrubio’s conduct to her supervisor, Boyer, the supervisor did not act to stop it but instead began making comments of her own. When Clark reported to the principal, she conducted her own investigation instead of reporting to the District pursuant to policy. Clark then filed a charge of discrimination with the EEOC.  The principal placed Clark on an intervention plan. Monterrubio was transferred to another campus. However, Clark was ultimately terminated and brought suit for discrimination and retaliation. The AHISD filed a plea to the jurisdiction which was denied.

The court spent a lot of time going through the alleged facts emphasizing how inappropriate and improper they were. The court appears to have done this in order to satisfy the fourth element of a hostile environment sexual harassment claim, in that a plaintiff must show the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to create a hostile or abusive working environment. AHISD asserts Monterrubio’s conduct was not based on gender, but that she treated both males and females the exact same way (equal opportunity offender). However, her pleadings, which focused on comments about her female anatomy, are gender based, regardless of whether Monterrubio made comments about her male colleagues male anatomy as well. “Although it could be argued that most of the acts complained of by Clark were not objectively severe the repeated nature of the comments and jokes over an almost two-year period was most certainly pervasive.”  Frequency of non-severe acts can apparently reach a level of pervasive harassment to qualify and trigger protection. With regards to her retaliation charge, while the passage of eight months between the time the EEOC charge was filed and her termination is not enough by itself to show a causal link for retaliation, Clark presented additional evidence. Her disciplinary record was exemplary until she filed her charge,  AHISD failed to follow its own policy in terminating her, and the principal warned Clark there would be “consequences” for her complaint.  Given this stage of the litigation only requires Clark to show some evidence of the jurisdictional elements and not “prove” her case, the pleadings and evidence are sufficient to establish jurisdiction.

If you would like to read this opinion, click here. Panel: Justice Angelini, Justice Martinez and Justice Alvarez.  Memorandum Opinion by Justice Martinez.  The attorneys listed for the AHISD are Leonard J. Schwartz, Bryan Dahlberg and Robert A. Schulman.  The attorneys listed for Clark are Matthew R. Pearson and Brendan K. McBride.