It's Just Lunch, Texas Supreme Court Rules, Denying Terminated Aide's Retaliation Claim

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By Kevin McGowan

April 24 — A San Antonio Water System employee terminated three years after she allegedly told a male executive to stop inviting two other female workers to lunch has no state law retaliation claim because she can't have reasonably believed the executive's behavior was sexual harassment, the Texas Supreme Court ruled April 24.

Reversing an appeals court decision that affirmed a nearly $1 million verdict for Debra Nicholas, the supreme court unanimously ruled Nicholas didn't engage in protected activity under the Texas Commission on Human Rights Act.

No reasonable person would believe Greg Flores, a water system vice president, was sexually harassing two female employees whom he had asked to lunch just because one reported the invitations made her feel “uncomfortable,” the court said.

Nicholas alleged that in 2006, she accompanied David Charadavoyne, the water system's chief executive officer, to a meeting with Flores at which Charadavoyne said he wouldn't allow “a member of the executive team to sexually harass anyone.” Nicholas, an aide to the CEO, said she separately told Flores it “wasn't a good idea” for him to go out alone with women from work and Flores could lose his job if he persisted with the lunch invitations. But Flores testified the alleged conversation with Charadavoyne and Nicholas never occurred.

After Nicholas's job in 2009 was eliminated under cost-cutting measures implemented by Flores, she alleged her discharge was retaliation for her 2006 opposition to Flores's conduct. But the Texas Supreme Court said Nicholas can't show she engaged in protected activity because under an objective test, no one could reasonably believe the lunch invitations were sexual harassment.

No Protected Activity 

On appeal, the water system argued Nicholas didn't engage in “protected activity” when she confronted Flores. In any event, she couldn't show a causal link between her alleged conversation with Flores and her termination three years later, the water system said.

Writing for the court, Justice Jeffrey V. Brown said to overcome the water system's usual immunity to suit, Nicholas must show the evidence was legally sufficient to support the jury's retaliation finding under the Texas Commission on Human Rights Act. The state legislature has waived governmental immunity for claims properly brought under the state's anti-discrimination law, the court said.

To interpret the Texas human rights act, the state looks for guidance to Title VII of the 1964 Civil Rights Act and cases construing Title VII, the court said. To establish a TCHRA retaliation claim, an employee must show she engaged in protected activity, an adverse employment action occurred and a causal link exists between the protected activity and adverse action.

But Nicholas's claim fails at the first step because she lacked a reasonable, good-faith belief she was engaging in protected activity under the state's human rights act, the court said.

As under Title VII, an employee alleging protected opposition to suspected discrimination must show she had a good-faith, reasonable belief the underlying practice violated the state human rights law.

Nicholas said she acted on information that Flores repeatedly had invited Lisa Spielhagen, a paralegal, to lunch and that Spielhagen was “uncomfortable” with those invitations. Flores also had invited training consultant Sharon Snoga to lunch and Nicholas said she believed Snoga “had a similar complaint,” although Snoga hadn't shared her opinion of the lunch invitations, the court said.

Objective Standard Applies 

“Regardless of what Nicholas subjectively believes about Flores's conduct, no reasonable person would believe that a handful of lunch invitations amounted to sexual harassment actionable under the TCHRA,” the court said.

“We have previously recognized that ‘to make out a statutory sexual-harassment claim, the employee must prove more than that she found the harassment offensive,' ” Brown wrote, citing Waffle House, Inc. v. Williams, 313 S.W.3d 796, 109 FEP Cases 1082 (Tex. 2010).

Sexual harassment is actionable only if it's “so severe or pervasive” that it alters an individual's employment conditions and creates an abusive working environment, the court said. “Offhand comments and isolated incidents, unless extremely serious, typically will not amount to discriminatory changes in the ‘terms, conditions, or privileges of employment.' ”

“Flores's lunch invitations may have been unwelcome, but no reasonable person could believe they constituted sexual harassment actionable under the law,” Brown wrote. “We do not mean to say that lunch invitations can never be a component of a viable sexual-harassment claim, but under the facts of this case, the lunch invitations were not so severe or pervasive as to alter the conditions of employment or create an abusive work environment.”

In ruling otherwise, the appeals court focused only on “the subjective beliefs” of Nicholas and the others who allegedly admonished Flores, neglecting to apply an objective test for determining if Nicholas reasonably believed harassment might be occurring, the supreme court said.

“At most, steps were taken to prevent unactionable conduct from becoming actionable,” Brown wrote. “But the standard in retaliation cases is ‘an objectively reasonable belief that a violation is actually occurring based on circumstances that the employee observes and reasonably believes.' ”

Nicholas's evidence doesn't meet that test for protected activity and the trial court should have dismissed her retaliation claim, the supreme court said.

Alex J. Katzmann and Jeffrey D. Small represented Nicholas. Cox Smith Matthews Inc. represented the water system.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at


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