….but the headlines will miss the real head turning determination in this opinion.  On April 6, 2018, the Texas Supreme Court released its opinion in Alamo Heights Ind. School Dist. v. Clark, 2018 Tex. Lexis 271 (Tex. 2018).  This case arose from a female gym teacher’s (Catherine Clark) complaints about another female gym teacher (Ann Monterrubio) and their supervisor (Michelle Boyer).   Due to space considerations, I will summarize the complaints by stating that Ms. Monterrubio and, to much lesser extent, Ms. Boyer, would feel comfortable in most any male locker room environment.  Ms. Clark was Ms. Monterrubio’s favorite target when it came to jokes and comments about Ms. Clark’s breasts, panties, which male gym teacher she should be dating, etc.  However, Ms. Monterrubio did not limit her harassment to Ms. Clark, but also harassed others, both male and female and was described by Ms. Clark as being “rude, crude and regularly unprofessional” to both colleagues, parents and students. The opinion does an excellent job of detailing why Ms. Monterrubio’s status as an equal opportunity harasser did not violate Title VII.  This ruling generated the headlines “Texas Supreme Court Rejects Teacher’s Same-Sex Harassment Case” and will likely lead to the misperception that the court rejected protection for sexual orientation discrimination, a claim which was not addressed in this opinion.


The real legal significance of this opinion was the court’s pronouncement regarding the retaliation claim brought by Clark.  First, the elements of a prima facie retaliation claim are the plaintiff: 1. Engaged in activity protected by Title VII; 2. Experienced a materially adverse employment action and; 3. A causal link exists between the protected activity and the adverse action (but for the protected activity the plaintiff would not have suffered the adverse action).  Before complaining of harassment, Clark was evaluated and was rated as “exceeds.”  Late in her first year on the job, she complained to Principal Stephanie Kershner about Monterrubio’s conduct.  She detailed her complaint in a 13 page letter which the court described as primarily reciting the rude and crude behavior. The complaint did include some comments by Monterrubio related to Clark’s body.  She complained in September of the following year to Kershner and then in October of the second school year filed a charge of discrimination with the EEOC.  Prior to receipt of the charge of discrimination, Kershner and Human Resources had prepared a “growth plan” for both Clark and Monterrubio.  The court found that Kershner and Human Resources did not have knowledge of the charge when they prepared the growth plan and that the 8 months that elapsed from receipt of the charge to Clark’s termination was not sufficient temporal proximity to demonstrate that, but for the complaint, the termination would not have occurred. The growth plan was considered adverse (regardless of its title) because termination was a potential result of failing to comply.  However, because there was no knowledge of the charge of discrimination when the growth plan was developed there was no relation to the charge. In short, Clark could not establish the third element with regard to the growth plan (decision makers were unaware of the charge) or the termination (lack of temporal proximity)


The charge of discrimination filed with the EEOC was certainly protected activity but could not be causally linked.  The Plaintiff argued that her complaint late during the first school year and the beginning of the next school year constituted protected activity. The Supreme Court found that the complaints did not give notice of a claim of discrimination. While the court states, “Magic Words” are not necessary statements about discrimination or harassment are not sufficient.  While a summary of the nature of the Clark’s complaints are detailed in the opinion, it is tough to believe that a complaint about comments about the size of a woman’s breasts and her thong along with the term harassment is not sufficient to constitute protected activity.  The court explains this away by returning to its harassment analysis and concluding because the comments by Monterrubio were not because of sex but just Monterubbio’s rude and crude way of harassing everyone, the complaints by Clark did not give the employer notice of a Title VII complaint.