Texas Supreme Court Justice Eva Guzman/courtesy photo Texas Supreme Court Justice Eva Guzman/courtesy photo

A divided Texas Supreme Court has rejected a sexual harassment case filed by a female public school teacher after concluding there was no sexual intent or gender motivation behind the alleged offensive comments about her breast size and unwanted touching by female colleagues.

Catherine Clark, a former coach and physical education teacher in the Alamo Heights Independent School District, sued the district for discrimination and retaliation after she claimed she was fired for reporting same-sex harassment.

Clark alleged that a female colleague frequently used vulgar language around her, commenting on her “enormous” breasts and telling her “I will think of you next time I am f—cking.” Clark also alleged that two female colleagues grabbed her behind during a group photo.

According to the court’s majority opinion, Clark filed several complaints with her supervisor during the 2008-09 school year. She later requested and took leave under the Family and Medical Leave Act. The school investigated Clark’s complaints and later determined there was no evidence of retaliation, and that Clark was responsible for any difficulties she had with co-workers, the opinion noted.

When she returned to work, Clark was transferred away from her alleged harassers, but continued to have conflicts with co-workers and admitted to lying about an incident involving a violation of state standardized-testing protocols, according to the court. Clark was terminated in 2009, prompting her to file the sexual-harassment and retaliation claims against the district.

The district responded to the suit by filing a summary judgment motion attaching proof of Clark’s unsatisfactory job performance and contending that she had no evidence that the alleged objectionable behavior against her was “gender based.”

The trial court and San Antonio’s Fourth Court of Appeals both rejected the district’s summary judgment motion, finding that a significant number of the comments Clark objected to were gender-motivated because they related to the fact that she is female. The district then appealed the case to the Texas Supreme Court.

In her majority opinion, Justice Eva Guzman dismissed Clark’s claims after concluding they were not gender-based.

“The dispositive issue on appeal is whether Clark raised a fact issue … that the offending conduct was based on her gender,” Guzman wrote. “Viewing the record in the light most favorable to Clark, her working environment was undoubtedly harassing. But based on Clark’s own version of events, which provides vital context that cannot be ignored in a legal-sufficiency review, a jury could not reasonably conclude that the alleged harassment was motivated by her gender.”

Guzman also noted that Clark had presented no evidence that sexual desire motivated her alleged harassers, none of whom is known to be homosexual.

“Sexually-tinged comments may be motivated by other reasons, such as personal animus, jealousy or the desire to irate or bully,” Guzman wrote.

Justice Jeff Boyd, joined by Justice Debra Lehrmann, dissented, concluding that a reasonable juror could find that Clark’s work environment was “objectively hostile or abusive.” And considering all of the circumstances of her case, a reasonable juror could also find that Clark was harassed if one of the harassers was a hypothetical male named “Andy,” Boyd noted.

“[A] reasonable juror could find that the principal and the District retaliated against Catherine because she summoned the courage to complain about Andy’s sexual improprieties and harassment. But could a reasonable juror reach those same conclusions if, as in this case, the harasser was a woman named Annie instead of a man named Andy?” Boyd wrote.

“If Clark’s harasser had been a male—the hypothetical ’Andy’ described above—this evidence would undoubtedly permit a reasonable juror to conclude that Clark suffered that type of harassment ‘because’ she is a woman,” Boyd concluded in his dissent.

Robert Schulman, a partner at San Antonio’s Schulman, Lopez, Hoffer & Adelstien who represents the school district in the case, is pleased with the decision.

“It’s the result of a long process and we certainly agree with the decision of the majority that Alamo Heights did not retaliate against this employee,” Schulman said.

Brendan McBride, a San Antonio lawyer who represents Clark, did not immediately return a call for comment.