The following is a portion of a brief in response to a Texas Citizens Participation Act Motion to Dismiss a common sexual harassment suit arguing that the new Texas Sexual Harassment Act TLC 21.141-2 applies to a TCPA motion.
In response to the suit, _____, who apparently files a lot of these Texas Citizen Participation Act motions (TCPA), filed a TCPA motion to dismiss. If you are familiar with these motions, you know that they have become a cancer upon the legal system. Until, the legislature came to its senses in 2019, the motion had found its way into almost every type of unintended lawsuit around. Obviously, it’s original purpose was to prevent the “big guy” from crushing the “little guy” in matters like slander suits or opposing attempts to crush the constitutional rights of individuals who oppose them. But, the legislature and the Texas Supreme Court, refused to reign the act in and it has metastasized, like an aggressive cancer, into almost every kind of suit imaginable. Who knew, that the most ordinary garden variety sexual harassment suit, that has to go through the Texas Workforce Commission Civil Rights Division screening could also be met with a TCPA motion. If the defendant in our routine sexual harassment case could throw out this suit using the TCPA, then almost every sexual harassment suit from now on would be toast. In my opinion, this TCPA motion was filed simply to use as a bargaining chip in this mediation.
Defendant’s TCPA motion is faulty in that the Defendant has used some old pre-2019 amendments law and cases. Their novel argument is that Plaintiff’s speech, most of which she denies having said, gives them grounds to maintain a TCPA motion. This is in error, as the 2019 amendments make it clear that the motion can only be applicable if our suit is “based on” “or in response to” what the Defendant or its employees said. They have gotten it backwards. Plaintiff’s suit is not based on any communication or actions of Defendant, except for its employee’s sexually harassing actions and speech, retaliation for reporting illegal sexual harassment, or other illegal speech. And, illegal speech or communications are not protected speech by the TCPA. “[T]here is no constitutional right to engage in criminal behavior, commit civil wrongs, or otherwise inflict injury upon others.” Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 219 (Tex. App.—Houston [1st Dist.] 2014, no pet.)”; Bandin v. Free & Sovereign Veracruz De Ignacio De La Llave, 590 S.W.3d 647 (Tex.App.- Houston, 2019). (“… in the case of the right to free speech, construing all communications regarding a matter of public concern to further a conspiracy as included under the [TCPA] statute would exceed even the broad rights envisioned by the statute when considered in conjunction with its purpose.” Ftn. 11). And that is exactly what Defendant in this case is trying to claim– that its sexually harassing language and actions should be protected speech under the TCPA, which is wrong.
On page 9 of Defendant’s Motion to Dismiss, Defendant claims “the Texas Supreme Court explicitly considers the communications which deal with the provision of healthcare services to be matters of public concern due to the potential implications of health and safety for the public. In addition,’public matters [in the context of TCPA protected communication] include, among other things,‘commission of crime.’ Finally, when discussing what constitutes matters of public concern, the Texas Supreme Court has explained that such matters include ‘a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’”
Defendant is entirely wrong in the foregoing quote in that the Texas Supreme Court case it relies upon and dealt with pre-2019 law before the amendments to the TCPA. The El Paso court of appeals in Yu v. Koo, 633 S.W. 3d 712, 722 (Tex. App.-El Paso, 2021) deals with the issues discussed in the Defendant’s quote above. In Yu, the court of appeals stated that, “…The [TCPA was] amended [in 2019] to do away with the ‘health and safety’ portion of the definition of ‘matters of public concern.’ Thus, where once a statement about an employer’s health and safety practices would clearly have fallen under the scope of the TCPA, the newly-limited scope of ‘matters of public concern’ no longer applies to broader concerns of health or safety where they do not also involve a ‘matter of political, social, or other interest to the community; or (c) a subject of concern to the public.’” “Although, wrongful termination allegations by a private employer might, under some circumstances, involve ‘matters of political, social, or other interest to the community’ or might otherwise be a ‘subject of concern to the public,’ we are not convinced the allegations here rise to that level. Termination as retribution for an employee having an extra-marital affair does not involve a matter of public concern; such a matter, under the circumstances pleaded here, presents a matter purely of private concern.”
Another reason the instant case is not a matter of public concern is that ____is a private club limited to select members of the community and does not have any direct connection with the public in general. Therefore, the internal disputes and events only affect the membership and employees of the private club and are matters of “purely private concern,” as in the Yu case.
“When the communication involved does not itself relate to a matter of public concern, the assertion the communication could result in a matter of public concern is beyond reach of the Act. See Erdner , 580 S.W.3d at 276, (citing Nguyen v. Hoang , 318 F.Supp.3d 983, 1001 (S.D. Tex. 2018) ).” Teachers Fed. Credit Union v. Esquivel, 621 S.W.3d 786, 795 (Tex. App. 2021).” In the Esquivel case, the court refused to rule that the plaintiff’s claims involved matters of public concern. The court stated its basis as: “Here, the communications relate solely to an employer’s view of its employee’s poor performance. The fact that his job predominantly involved oversight of compliance with federal regulations is immaterial under these particular facts. At best, the communications involved TFCU’s well-being from a compliance standpoint, but this does not affect the economic or community well-being of the general public. As previously discussed, the possibility that the communication could result in a matter of public concern is beyond reach of the Act.”
In the present case, Plaintiff’s situation is very similar to Esquivel in that the Defendant’s claim that she was terminated for refusing to obey the order of her supervisor and calling him a name “does not affect the economic or community well-being of the general public.” As previously discussed, to give the right of association the breadth advocated by Kawcak would require a reading that makes the statute a sword to protect the commission of civil wrongs and that ignores the stated purpose of the statute to protect the right to file meritorious lawsuits.
Although citizens most certainly do have a First Amendment right to associate to bring about social and political change for our “common interests,” there is no constitutional right to engage in criminal behavior, commit civil wrongs, or otherwise inflict injury upon others. Importantly, the legislature expressly included within the stated purpose of the TCPA its intent to, “at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” The matter in Plaintiff’s case involved the Defendant’s alleged view that Plaintiff refused to obey an order and called her supervisor a name. Even though Esquivel claimed his employer terminated him based on race, age, and sex it made the court no difference as to the holding that the TCPA did not cover the situation in the case and the motion failed.
The Esquivel case also speaks to Defendant’s claim that there was a common interest among the employees in discussing Plaintiff’s employment, thereby involving the right of association. The court stated: “we shift our analysis to whether the communications satisfy the remainder of the Act’s definition. Interpretation of the “right of association” under the Act includes purely private communications with no public purpose, and encompasses communications among co-conspirators in furtherance of criminal or tortious activity, which would have an “anomalous result.” MVS Int’l Corp. , 545 S.W.3d at 194. At least one of our sister courts has found, in order for the communication to trigger a right of association, it must also involve the public or citizen’s participation. See Forget About It, Inc. , 585 S.W.3d at 66-67 (holding “it would be illogical for the [TCPA] to apply to situations in which there is no element of public participation”)(quoting Dyer v. Medoc Health Services, LLC , 573 S.W.3d 418, 426 (Tex.App.—Dallas 2019, pet. denied)). The Fort Worth Court of Appeals provided a well-reasoned analysis of the Legislature’s intended scope of the definition of “right of association” in Kawcak v. Antero Resources Corp. , 582 S.W.3d 566 (Tex.App.—Fort Worth 2019, pet. denied). The Fort Worth Court focused on the dictionary definition of “common,” which they described as shared interests among associating individuals. See id. at 575-576. Based on their survey of definitions, the Fort Worth Court of Appeals held “common interests” as defined under the Act required the interests be common to more than two people, requiring commonality among the public at large, or at least a group.” Id. at 575. This quote would certainly apply to Plaintiff’s case as the public, or even a group of the public, was not involved in the situation of Plaintiff’s claim because the Defendant is a purely exclusive private club.
The Kawcak v. Antero Resources Corp. case cited above also held that: “to give the right of association the breadth advocated by Kawcak would require a reading that makes the statute a sword to protect the commission of civil wrongs and that ignores the stated purpose of the statute to protect the right to file meritorious lawsuits: Although citizens most certainly do have a First Amendment right to associate to bring about social and political change for our “common interests,” there is no constitutional right to engage in criminal behavior, commit civil wrongs, or otherwise inflict injury upon others. Importantly, the legislature expressly included within the stated purpose of the TCPA its intent to, “at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
Defendant argues on page 10 of its motion, that the portion of its termination letter in bold involved protected speech quoting claimed words of Plaintiff calling her supervisor a pervert, molester, and pedophile. While it is true that Plaintiff told her supervisor he was a pervert, she denies she ever used the word pedophile or molester. However, Defendant is using those words that Defendant placed in the termination letter itself, to claim that they are protected by the TPCA.
Defendant claims on pag 12 of its motion that because a television station found out about the Plaintiff’s lawsuit by reading the public records filings and then ran a small spot on it on either its internet site or on air, that this would make the suit a matter of public concern. The only case cited by Defendant involved famous persons that the public are interested in such a Earl Campbell, a famous football player and Gary Baxter, a less famous football player. This is a far cry from a dispute between a kitchen worker at a private club and another worker at the same club. Further, the threat by Plaintiff to go to a news source with her story (which she never did) does not amount to a matter of public concern. As stated above in the Esquivel case, the possibility that a matter could become a matter of public concern is not protected.
In conclusion regarding the TCPA claim, in reviewing the claims of discrimination by Plaintiff and Defendant’s responses, it becomes clear that Plaintiff’s case is simply about Plaintiff’s claim of sexual harassment (an act), sexually hostile work environment (actions), and retaliation for having reported the sexual harassment in good faith (all actions). Defendant claims it terminated Plaintiff for her actions in refusing to obey an order or what she called Gully (none of which were the basis for her claims in this suit against Defendant) The law is clear that actions do not fall within the purview of the TCPA, even when mixed with language. Graves v. Evangelista-Ysasaga, No. 14-22-00137-CV, at *6-7 (Tex. App. Jan. 24, 2023) [“Accordingly, at least some of the allegations relied on by Graves do not fall within the TCPA at all. Even if we assume that the other allegations fall within the TCPA, when a TCPA motion seeks dismissal of a claim that involves a mix of allegations that fall within the TCPA and allegations that do not, ‘under [such] circumstances the trial court does not err by denying the TCPA motion to dismiss.’” Neely v. Allen, No. 14-19-00706-CV, 2021 WL 2154125, at *9 (Tex. App.-Houston [14th Dist.] May 27, 2021, no pet.
However, even if the TCPA were to apply, Plaintiff can still prevail. If the Act applies then the Plaintiff must establish a prima facie case, as is done in a motion for summary judgment using the McDonnell Douglas framework. Defendant’s motion argues that Plaintiff can’t establish a prima facie case, in that the sexual harassment by her supervisor, did not rise to the level of actionable sexual harassment by not being severe or pervasive.
The pre-2021 law in Texas regarding sexual harassment does not apply in this case. The reason this is true is that Chapter 21 of the Texas Labor Code was amended, effective September 1, 2021, expressly defining sexual harassment in Texas. Before this law, the Texas Supreme Court had accepted the federal law Title VII definition of sexual harassment and thereby ingrafted the federal law as to the requirement that the sexual harassment be “severe or pervasive.” However, even the Title VII statute did not define or expressly incorporate or define sexual harassment. Sexual harassment was court-made law based on the Act’s prohibition of sex discrimination. Likewise, Chapter 21 of the Texas Labor Code had never defined sexual harassment, until the Texas Legislature did just that by adopting TLC §21.141-142 effective on September 1, 2021 to any causes of action arising thereafter. Plaintiff’s cause of action arose in 2022, thereby being governed by the new definition of sexual harassment. Here are those two new sections for your convenience:
Sec. 21.141. DEFINITIONS. In this subchapter:
(1) “Employer” means a person who:
(A) employs one or more employees; or
(B) acts directly in the interests of an employer in relation to an employee.
(2) “Sexual harassment” means an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if:
(A) submission to the advance, request, or conduct is made a term or condition of an individual’s employment, either explicitly or implicitly;
(B) submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a decision affecting the individual’s employment;
(C) the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual’s work performance; or
(D) the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.
Sec. 21.142. UNLAWFUL EMPLOYMENT PRACTICE. An employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer’s agents or supervisors:
(1) know or should have known that the conduct constituting sexual harassment was occurring; and
(2) fail to take immediate and appropriate corrective action.
I have underlined the pertinent words in the Amended Act, which would replace the “severe or pervasive” language and its requirements affecting the acts of sexual harassment. The language used is “the advance, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.” The Legislature knew about the “severe or pervasive” language grafted into the case law, but not found in the statute. Obviously, the Legislature rejected that harder burden for the less onerous burden mentioned in the statute. This amendment’s purpose was to make it easier for women to seek redress by expanding their rights. I can’t find any Texas cases on it yet, since it only became effective on September 1, 2021. I found one commentator who said, “The inclusion of an ‘intimidating’ working environment seems to lower the bar for harassment complainants.” Also, the recent 2022 issue of the Texas Pattern Jury Charges, PJC 107.21 includes the new language in the 2021 amendments of “intimidating,hostile, or offensive working environment,” rather than the old “severe of pervasive” language. Also, the comments to that PJC question are informative as to the application of the changes in the law (see pages 338-341).
The Texas Supreme Court in 2018, in Alamo Heights ISD v. Clark, stated that “the Texas Legislature modeled the TCHRA on Title VII and we have expressly recognized that the TCHRA prohibits sexual harassment.” The Court goes on to state the burden of proof and the third element of proof is “the harassment was so severe or pervasive as to alter the conditions of the employment and create a hostile work environment…” The amendment to the TCHRA may have been in response to the Texas Supreme full throated adoption of the “severe or pervasive” obstacle to women’s rights. However, if the Supreme Court is going to be consistent with its now slavish adherence to statutory language, they are going to be forced to acknowledge that the change in the statutory language by the Legislature purposely reduced the burden, as stated above from severe or pervasive (which nowhere appears in the statutory language but is only court-made law) to intimidating, hostile, or offensive working environment. The “intimidating…or offensive” language would surely qualify what the supervisor did and said, as fitting within that language of the new statute under state law. We have not sued under the federal Title VII law, which would still be governed by the severe or pervasive standard.
Defendant uses as authority, several of the old cases (or newer cases that rely on the old cases) holding that, even if the employer grabs a woman’s breasts or rear-end and squeezes them, this may be bad, but is not severe or pervasive enough to rise to actionable sexual harassment. However, even if the “severe or pervasive” standard were to be engrafted somehow into even the amended sexual harassment 2021 statute, Plaintiff could still prevail by showing that the actions of Defendant created a severe or pervasive environment.
Of course, these old cases were almost all written by old men back in the early 2,000nds before the “me too” movement permitted all the women who have been treated this way and worse, to come out of hiding. I imagine you don’t know one woman and cannot find one, who would say that squeezing or even touching a woman’s breast or rear-end on purpose for sexual thrills, would not and should not be actionable sexual harassment. And so, the Fifth Circuit in 2013 came to its senses and found actionable sexual harassment in a case where a woman was not even touched. The Court, in a published case, Royal v. CCC&R Tres Arboles, LLC, 736 F.3d 396 (5th Cir. 2013), distinguished, criticized, and refused to follow two cases relied on by Defendant (see pages 22-23 of Defendant’s motion to dismiss). These two cases (which I call the “usual suspects”) are Shepherd v. Comptroller of Pub. Accounts of the State of Texas, 168 F.3d871 (5th Cir. 1999) and Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 122 Fed,Appx. 734 (5th Cir. 2004). The acts found to be a sexually hostile work environment in Royal are a lot less than the actions of the defendant’s employees in the Shepard and Hockman cases. The Royal case shows that, hopefully the Fifth Circuit is backing away from these old cases requiring sexual harassment to be extreme, beyond what most women would expect to be sexual harassment. The cases cited by Defendant holding that some really bad sexual acts and words against women are not actionable are just plain shameful and should be ignored and condemned by a civilized society.
“In a 2003 law review article, Judith Johnson argued that lower courts misused the ‘severe or pervasive’ requirement to ‘excuse’ ‘egregious conduct that, in many cases, would be criminal or at least would outrage any reasonable person.’ Sperino and Thomas made this case in a 2017 New York Times op-ed, urging lower courts to reject excessively stringent interpretations of the ‘severe or pervasive standard.’ Drawing on their book, Unequal, which documented larger trends in the ways courts undermine discrimination law, Sperino and Thomas recounted numerous cases involving highly offensive conduct that the court deemed insufficiently severe or pervasive to proceed to trial. Sperino and Thomas hypothesized that overly stringent judicial application of the ‘severe or pervasive’ standard may have resulted from outlier decisions in early harassment jurisprudence, written by overwhelmingly older male judges hostile to harassment claims. These decisions had an outsized influence on later jurisprudence: judges disinclined toward a particular case had a substantial body of law to support their own crimped interpretation.” (Emp.added). From a Law review article (pages 241-2) by Tippett, Elizabeth C., “The Legal Implications of the MeToo Movement” (2018).Minnesota Law Review. 57. https://scholarship.law.umn.edu/mlr/57