                                                                               ACCEPTED
                                                                           04-14-00746-CV
                                                               FOURTH COURT OF APPEALS
                                                                    SAN ANTONIO, TEXAS
                                                                      11/5/2015 7:57:29 PM
                                                                            KEITH HOTTLE
                                                                                    CLERK

                    No. 04-14-00746-CV

                                                           FILED IN
                                                    4th COURT OF APPEALS
                   In the Court of Appeals           SAN ANTONIO, TEXAS
               for the Fourth District of Texas     11/5/2015 7:57:29 PM
                                                      KEITH E. HOTTLE
                                                            Clerk

  ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT,
                   Appellant,

                              v.

                  CATHERINE CLARK,
                      Appellee.


       On Appeal from the 285th Judicial District Court
                  of Bexar County, Texas


APPELLANT’S MOTION FOR EN BANC RECONSIDERATION




                                   ATTORNEYS FOR APPELLANT

                                                    Robert A. Schulman
                                              Texas Bar No. 17834500
                                                    Leonard J. Schwartz
                                              Texas Bar No. 17867000
                                                      Bryan P. Dahlberg
                                                State Bar No. 24065113
                                                     517 Soledad Street
                                        San Antonio, Texas 78205-1508
                                            Telephone: (210) 538-5385
                                            Facsimile: (210) 538-5384
                                       TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... i

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION ................................................................................................... 2

ARGUMENT ........................................................................................................... 3

I.       Holding pervasive sexually charged harassment as same-sex sex
         discrimination without a showing of animus based on Clark’s gender does
         not meet the “because of sex” requirement of the Oncale court. ................. 3

         A.       Sexual comments and conduct without gender animus do not
                  discrimination make.” ......................................................................... 6

         B.       Clark, a woman, was subject to harassment based on expressions
                  of animosity and juvenile provocations that were also
                  launched at men................................................................................. 10

         C.       The Memorandum Opinion establishes an expansive new precedent
                  that fundamentally alters the nature of what constitutes
                  discriminatory same-sex sexual harassment under Oncale. .............. 12

II.      The Memorandum Opinion, left unaddressed, reverses years of precedent
         and Texas Supreme Court pronouncements discarding unsubstantiated
         conclusory statements as competent summary judgment evidence. ............ 13

CONCLUSION AND PRAYER ........................................................................... 19

CERTIFICATE OF SERVICE .............................................................................. 20

CERTIFICATE OF COMPLIANCE ..................................................................... 21




                                                          i
                                   TABLE OF AUTHORITIES

CASES

Bacon v. EDS
     219 Fed. Appx. 355 (5th Cir. 2007) ................................................ 14, 17, 18

Davis v. Coastal Int’l Sec., Inc.
      275 F.3d 1119 (D.C. Cir. 2002)..................................................................... 8

E.E.O.C. v. Boh Bros. Constr. Co., L.L.C.
      731 F.3d 444 (5th Cir. 2013) ............................................................. 7, 12, 13

English v. Pohanka of Chantilly, Inc.
      190 F. Supp. 2d 833 (E.D. Va. 2002). ......................................................... 11

Foreman v. Whitty
     392 S.W.3d 265 (Tex. App.—San Antonio 2012, no pet.). ............ 14, 15, 18

Gumpert v. ABF Freight Sys., Inc.
    293 S.W.3d 256 (Tex. App.—Dallas 2009, pet. denied)............................. 10

Harris v. Forklift Sys., Inc.
      510 U.S. 17, 25 (1993) ................................................................................. 5

Holman v. Indiana
     211 F.3d 399 (7th Cir. 2000) ................................................................. 10, 12

Indest v. Freeman Decorating, Inc.
       164 F.3d 258 (5th Cir. 1999) ......................................................................... 5

La Day v. Catalyst Tech., Inc.
     302 F.3d 474 (5th Cir. 2002) ............................................................... 7, 8, 10

Love v. Motiva Enters. LLC
      349 Fed. App’x 900 (5th Cir. 2009) .................................................. 9, 10, 13

Mission Consol. Indep. Sch. Dist. v. Garcia
      372 S.W.3d 629 (Tex. 2012) ....................................................................... 14



                                                       ii
Oncale v. Sundowner Offshore Servs.
     523 U.S. 75 ........................................................................................... passim

Pedroza v. Cintas Corp.
     397 F.3d 1063 (8th Cir. 2005) ............................................................. 7, 8, 13

Texas Parks & Wildlife Department v. Gallacher
      No. 03-14-00079-CV, 2015 WL 1026473
        (Tex. App.—Austin 2015) ................................................................ 14, 18

Walker v. SBC Servs., Inc.
     375 F. Supp. 2d 524 (N.D. Tex. 2005) ...................................................... 8, 9




                                                        iii
                               No. 04-14-00746-CV


                              In the Court of Appeals
                          for the Fourth District of Texas


         ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT,
                          Appellant,

                                         v.

                             CATHERINE CLARK,
                                 Appellee.


                 On Appeal from the 285th Judicial District Court
                            of Bexar County, Texas


      APPELLANT’S MOTION FOR EN BANC RECONSIDERATION


      Appellant Alamo Heights Independent School District (“AHISD”) files this

motion requesting en banc reconsideration of the decision issued in this appeal by

a panel of this Court consisting of Justices Angelini, Martinez, and Alvarez (“the

Clark Panel”) on October 21, 2015, holding that Clark sufficiently alleged a prima

facie case of sexual harassment and a prima facie case of retaliation under the

Texas Commission on Human Rights Act, therefore overcoming AHISD’s plea to

the jurisdiction, and would respectfully show this Court as follows:




                                         1
                                INTRODUCTION

      The Clark panel affirmed the trial court’s denial of AHISD’s plea to the

jurisdiction challenging Clark’s gender discrimination and retaliation claims under

the TCHRA. In doing so, the Court held that Clark had met her burden of raising a

fact issue as to each of the prima facie elements required for both claims. AHISD

moves for reconsideration/rehearing en banc because the panel’s Memorandum

Opinion (i) establishes an expansive new precedent that fundamentally alters the

nature of what constitutes discriminatory same-sex sexual harassment under

TCHRA and Title VII, and the landmark U.S. Supreme Court decision in Oncale;

and (ii) reverses precedent of this and other reviewing courts, ignoring

jurisdictional evidence negating allegations of a causal link between protected

activity and termination in support of a retaliation claim. The Court’s correction of

these errors in the Memorandum Opinion is imperative in order to ensure

consistency of the decision of the court with federal and state precedent.




                                          2
                                  ARGUMENT

        On May 15, 2008, Catherine Clark submitted a 14-page letter to

Stephanie Kershner detailing a year’s worth of alleged bullying and inappropriate

comments by Ann Monterrubio. (Supp. CR, Vol. I. 211-224) Throughout this letter

Clark used verbatim quotes from the District’s general policy definition of

“harassment” to describe Monterrubio’s behavior that she found offensive. Clark

ascribed several perceived motivations to Monterrubio’s behavior, such as

Monterrubio’s jealousy and her belief that Clark was wealthy and did not need to

work. Clark also alleged that Monterrubio bullied her because she did not get along

with Clark’s daughter, and that Monterrubio treated African American students

poorly because she was racist. But throughout this 14-page letter Clark never once

alleged that Monterrubio was bullying her because of her gender. Id. Rather, Clark

alleged that Monterrubio talked trash about “everyone,” including three other

female coaches and “all the male coaches.” Id. As demonstrated below and in

previous briefing, the Memorandum Opinion erred in holding that Clark has

alleged a discriminatory hostile work environment based on her gender.

   I.     Holding pervasive sexually charged harassment as same-sex sex
          discrimination without a showing of animus based on Clark’s gender
          does not meet the “because of sex” requirement of the Oncale court.

        In their Memorandum Opinion (“Memorandum Opinion”), the Fourth Court

of Appeals Panel (“Panel”) liberally construed Clark’s factual allegations,



                                        3
accepting as true a litany of offensive sexually oriented remarks alleged to have

been directed toward her by defendant’s employees. Because Clark is alleging

same-sex sexual harassment, the Memorandum Opinion also recognized that the

three methods for establishing same-sex sex discrimination described in the

U.S. Supreme Court landmark decision of Oncale v. Sundowner Offshore Services

on this subject, while directive, are not exclusive or exhaustive. Missing, however,

from the Panel’s analysis is the significant, absolute and unwavering

Supreme Court mandate of Oncale that: “Whatever evidentiary route the plaintiff

chooses to follow, he or she must always prove that the conduct at issue was not

merely tinged with offensive sexual connotations, but actually constituted

discrimination . . . because of . . . sex.” Oncale v. Sundowner Offshore Servs.,

523 U.S. 75, 81 (1998) (internal quotations omitted) (emphasis added). “The

prohibition of harassment on the basis of sex requires neither asexuality nor

androgyny in the workplace; it forbids only behavior so objectively offensive as to

alter the “conditions” of the victim's employment.” Id. at 81.

      Statements and conduct relied upon by Clark and adopted in the

Memorandum Opinion are not statements and conduct “because of” Clark’s

gender, that is, statements and conduct made because Clark is a woman and not a

man, and thus, are not statements or conduct “because of sex.” Nor were the

statements or conduct Clark attributes to her alleged female harasser directed



                                          4
toward women alone as similar sexually-oriented conduct had also been directed

toward men. (Supp. CR, Vol. I at 212, 217, 219)

      While certainly not acceptable workplace conduct, the actions and speech

alleged by Clark simply do not rise to the level of a sexually discriminating hostile

environment within the mandatory penumbra of Oncale, and to hold them as such

revises and reverses U.S. Supreme Court precedent. In the words of

Justice Ginsburg, “The critical issue, Title VII’s text indicates, is whether members

of one sex are exposed to disadvantageous terms or conditions of employment to

which members of the other sex are not exposed.” Oncale v. Sundowner Offshore

Servs., 523 U.S. 75, 80 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,

25 (1993) (Ginsburg, J., concurring)).)

      Properly understanding and applying this important Oncale distinction

between harassment about gender and harassment because of gender will maintain

continuity between the decisions of Texas courts, the mandate of our U.S. Supreme

Court and the anti-discrimination laws, like Title VII and the Texas Commission of

Human Rights Act (“TCHRA”), lest those laws be turned into “a general civility

code for the American workplace,” the exact scenario our courts have strived to

avoid. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 263 (5th Cir. 1999).




                                          5
      A.    Sexual comments and conduct without gender animus do not
            discrimination make.

      Title VII and the TCHRA do not prohibit harassment per se. Rather, they

prohibit discrimination in the terms and conditions of employment based on a

person’s membership in a protected class, such as gender. As such, harassment that

alters the terms and conditions of employment violates Title VII and the TCHRA

only when it is gender discriminatory. As the Supreme Court held in Oncale:

      Title VII does not prohibit all verbal or physical harassment in the
      workplace; it is directed only at “discriminat [ion] ... because of ...
      sex.” We have never held that workplace harassment, even
      harassment between men and women, is automatically discrimination
      because of sex merely because the words used have sexual content or
      connotations. “The critical issue, Title VII’s text indicates, is whether
      members of one sex are exposed to disadvantageous terms or
      conditions of employment to which members of the other sex are not
      exposed.”

See Oncale, 523 U.S. at 80.

      In the case of mixed gender harassment, the discriminatory motive is

obvious (see Oncale, 523 U.S. at 81); but in cases where the alleged discrimination

is based on same-sex sexual harassment, our courts are left with the more difficult

conundrum of determining whether the harassment – the disadvantageous terms or

conditions of employment – were visited upon the victim because of the victim’s

gender.

      This very question was addressed by the U.S. Supreme Court in Oncale.

Under Oncale, a court cannot simply determine that same-sex harassment is

                                         6
discriminatory and thus violative of Title VII, because it was “sexual” in nature. Id.

Rather, a court must consider the possible reasons why a same-sex harasser would

harass a member of his or her own protected class. In order for the harassment to

be actionable, the underlying reason must be discrimination, as opposed to

boorishness or general lack of civility. Oncale, 523 U.S. at 80. Oncale suggested

three potential “evidentiary routes” to assist in this determination (see discussion of

same in AHISD’s briefing), and in EEOC v. BOH Bros. the Fifth Circuit identified

a fourth possibility, which is harassment based on a victim’s nonconformance with

gender stereotypes.

      The harassment alleged here is analogous to examples of nondiscriminatory

sexual conduct found in BOH Brothers. BOH Brothers tells us that when

addressing same-sex sexual harassment hostile work environment claims, a

workplace environment can well be “hostile” and yet, not “discriminatory”: “For

example, same-sex harassment that is ‘severe or pervasive’ enough to create a

hostile environment might be excluded from the coverage of Title VII because it

was not discriminatory on the basis of sex.” E.E.O.C. v. BOH Bros. Constr. Co.,

L.L.C., 731 F.3d 444, 453 (5th Cir. 2013) (quoting La Day v. Catalyst Tech., Inc.,

302 F.3d 474, 478 (5th Cir. 2002)).

      In Pedroza v. Cintas Corp., a failed hostile work environment claim, a

female plaintiff claimed that her coworker had repeatedly attempted to kiss her and



                                          7
had made sexual gestures and comments to her. While the court found evidence

that the coworker was “vulgar and boorish” and sought to “antagonize” the

plaintiff, the court would not find the existence of same-sex sexual harassment.

Pedroza v. Cintas Corp., 397 F.3d 1063, 1066-71 (8th Cir. 2005).

      According to Clark, her harassers made frequent sexual remarks to her,

including comments about her breasts and buttocks, commenting on her naivety

about various sexual practices, while exhibiting aggressive and intimidating

behaviors toward her, conduct that the Oncale court and other courts, including the

Fifth Circuit, have held to be outside the fold of discrimination.

      Obscene gestures and comments are “commonplace in certain circles,” and

more often than not, are nothing more than “expressions of animosity and juvenile

provocation.” Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1121 (D.C. Cir.

2002). “A harasser may well make sexually demeaning remarks and putdowns to

the plaintiff for sex-neutral reasons.” La Day v. Catalyst Tech., Inc., 302 F.3d 474,

480 (5th Cir. 2002). Clark admits herself that her alleged harasser,

Coach Monterrubio, disdained “smug, wealthy, and snotty” Alamo Heights

mothers, and claimed that Clark was one of them and should stay home.

(Supp. CR, Vol. I at 216).

      In the same-sex example of Walker v. SBC Services, Inc., the plaintiff,

Walker, was offended by her supervisor’s comments related to the supervisor’s sex



                                          8
life, as well as sexually charged conduct such as “simulat[ing] oral sex with a

novelty drink” and her supervisor having “removed her blouse at the office to show

her new brassiere.” Walker v. SBC Servs., Inc., 375 F. Supp. 2d 524, 530 (N.D.

Tex. 2005). But, under the guidance of Oncale, Walker’s same-sex discrimination

claim failed because she did not show, except for her own conclusory assertions,

that “the comments . . . made by other females, in the presence of only females”

constituted discrimination because of her sex. See Walker, 375 F. Supp. 2d at 536-

37. Specifically, she never “contend[ed] that any of the females involved were

lesbians or that the comments were related in any way to explicit or implicit sexual

proposals, or that the person making the comments was motivated by a hostility to

the presence of females in the workplace.” Id. at 536.

      In Love v. Motiva Enterprises LLC, a female coworker subjected Love to

name calling, unwanted touching, including under her bra strap and underwear,

rubbed her breasts against Love, and called her “sorry excuse for a woman” and

“failure as a woman.” Love v. Motiva Enters. LLC, 349 Fed. App’x 900, 902-03

(5th Cir. 2009). The court held that the incidents Love experienced, while

“offensive,” “inappropriate,” and “unacceptable,” were “more indicative of

humiliating or bullying behavior.” Id. Furthermore, the harasser “had a poor

attitude toward all her co-workers, as documented by negative comments in her

personnel file, and a history of name-calling and treating others rudely and



                                         9
disrespectfully.” Id. 903. Thus, Love’s same-sex sexual harassment claim failed

summary judgment. Id. at 904.

      Thus, allegations of actions and language offensive due to their sexual

nature are simply not enough to satisfy the third element of a prima facie same-sex

case. See La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002). Ergo,

subjecting a same-sex coworker to sexual comments, gestures, vulgar, lewd,

boorish, or bawdy language, insults, or banter that would ordinarily offend,

aggravate, and provoke, may result in an intolerable work place, but, unless such

conduct was motivated by the gender of the recipient, the harassment resulting

from that hostility or animosity is not same-sex discrimination under Title VII or

the TCHRA. See Gumpert v. ABF Freight Sys., Inc., 293 S.W.3d 256, 261

(Tex. App.—Dallas 2009, pet. denied).

      B.     Clark, a woman, was subject to harassment based on expressions
             of animosity and juvenile provocations that were also launched at
             men.

       “Because Title VII is premised on eliminating discrimination, inappropriate

conduct that is inflicted on both sexes, or is inflicted regardless of sex, is outside

the statute’s ambit.” Holman v. Indiana, 211 F.3d 399, 403 (7th Cir. 2000). Here

we have allegations of nondiscriminatory harassment. The alleged harasser was

said to have been clearly vulgar and boorish, freely discussing sexually intimate

and offensive topics, but not discriminating between male or female coaches when



                                         10
engaging in lewd conversations, and engaging in backbiting comments against all

faculty members, notwithstanding their gender. (Supp. CR, Vol. I at 219)

      While the critical issue in sex discrimination cases “is whether members of

one sex are exposed to disadvantageous terms or conditions of employment to

which members of the other sex are not exposed” (see Oncale, 523 U.S. at 80), an

analysis of the conditions of employment may cause a court to weigh conduct

towards male and females differently. In English v. Pohanka of Chantilly, Inc., the

same-sex male harasser also bothered his female coworkers; however, the court

found that evidence that men were harassed more severely would not be

dispositive, since the two sexes rarely shared the same workspace. English v.

Pohanka of Chantilly, Inc., 190 F. Supp. 2d 833, 847 (E.D. Va. 2002).

      As in the instant matter, the harassing coworker in English was known for

his irritating and vulgar comments, and the other male workers in the plaintiff’s

office tended to encourage horseplay, so the court found it was unreasonable to

view the conduct towards the plaintiff’s sexual harassment. Id. at 844-45.

Similarly, Clark’s alleged harasser’s workspace in the Girls’ Athletic Department

was shared with other women coaches including Clark, so they all endured the

bulk of her vulgarity. But, just as in English, the alleged harasser in the instant

matter also engaged in lewd conversation with both male and female coaches and




                                        11
made of fun of all coaches, inflicting her inappropriate conduct on both sexes. See

Holman v. Indiana, 211 F.3d 399, 403 (7th Cir. 2000); Supp. CR, Vol. I at 219.

      C.     The Memorandum Opinion establishes an expansive new
             precedent that fundamentally alters the nature of what constitutes
             discriminatory same-sex sexual harassment under Oncale.

      The Memorandum Opinion, citing only to Oncale and BOH Bros invents a

fifth way to establish actionable same-sex sexual harassment, harassment when the

alleged harassment exists as the result of caustic and lewd remarks regarding a

plaintiff’s anatomy. See Memorandum Opinion, at p. 10.

      Significant and importantly, left unaddressed, the Memorandum Opinion

does precisely what Oncale and its progeny warn against, attaching liability to

conduct with sexual connotation absent gender discrimination and thus, creating a

general civility code for the workplace, out of step with Federal Court guidance.

      Although the three routes identified by Oncale are not exhaustive, and the

Fifth Circuit has recognized a fourth route in EEOC v. BOH Bros (which is about

gender stereo-type nonconformity, and thus not applicable), the tie that binds each

of these routes is that they demonstrate that a same-sex victim was harassed

because of his or her gender. The Memorandum Opinion invents an entirely new

route that is unmoored from the “critical issue” identified by Justice Ginsburg: that

a plaintiff be exposed to disadvantageous terms or conditions of employment to

which members of the other sex are not exposed. See Oncale, 523 U.S. at 80.



                                         12
         In Clark’s deposition and briefing, she asserted that her alleged harasser’s

early harassment consisted of sexual advances. In doing so, Clark attempted to

proceed under the first route identified in Oncale, but under this route, Clark

ultimately fails because there is no evidence, not even Clark’s unsupported

allegation, that Coach Monterrubio was homosexual. Under these same

circumstances, the plaintiffs’ claims in Love and Pedroza were dismissed. See

Love, 349 Fed. App’x at 902-03; Pedroza, 397 F.3d at 1066-71. As such, the

Memorandum Opinion, ventures far outside of Oncale and BOH inventing a new

and unsupported avenue to same-sex hostile environment sexual harassment in

holding that comments about a plaintiff’s anatomy are discrimination based on

gender.

         Clearly and understandably, it was the pervasiveness of the harassment as

alleged by Clark that led to this misapplication of guiding authorities. Nonetheless,

Clark’s allegations cannot support a finding that the harassing conduct she alleges

was due to her specific gender, that is, conduct suffered because she is, in fact, a

woman, the coup de grace of same-sex Title VII sexual harassment.

   II.      The Memorandum Opinion, left unaddressed, reverses years of
            precedent and Texas Supreme Court pronouncements discarding
            unsubstantiated conclusory statements as competent summary
            judgment evidence.

         The Memorandum Opinion’s acceptance of Clark’s allegations that her

disciplinary record prior to engaging in protected activity was “exemplary” and

                                          13
that her employer “failed to follow its own policy in firing her” may not be

considered as jurisdictional evidence because they are conclusively negated by the

jurisdictional evidence on file in this case. See Foreman v. Whitty, 392 S.W.3d

265, 273 (Tex. App.—San Antonio 2012, no pet.) (holding that unsubstantiated

conclusory statements are not competent summary judgment evidence); see also

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)

(explaining that if evidence is undisputed or fails to raise a fact question on a

jurisdictional issue, the claim must be dismissed).

      As the Memorandum Opinion correctly cited, in examining to determine the

existence of a prima facie retaliation claim, the requisite causal nexus between a

plaintiff’s protected activity and an adverse employment action can be established

by circumstantial evidence of: (1) the extent of the employee’s disciplinary record;

(2) whether the employer followed its policies and procedures in dismissing the

employee; and (3) the temporal relationship between the protected action and the

termination. See Memorandum Opinion at p. 12, citing Bacon v. EDS, 219 Fed.

Appx. 355, 357 (5th Cir. 2007); Tex. Parks & Wildlife Dep’t v. Gallacher, No. 03-

14-00079-CV, 2015 WL 1026473, at *6 (Tex. App.—Austin Mar. 4, 2015, no pet.)

(opin. on reh’g, mem. op.).

      Here, because Clark’s termination occurred eight months after she filed her

EEOC charge, the Court properly recognized that “[t]aken alone, the significant



                                         14
time period between the filing of the EEOC charge and her termination fails to

raise a fact issue on causal connection.” See Memorandum Opinion at p. 14.

       However, the Memorandum Opinion incorrectly found that Clark’s

remaining allegations were sufficient to demonstrate a causal link between her

EEOC charge and termination. Id. Specifically, the Memorandum Opinion held

that Clark presented evidence that her disciplinary record prior to engaging in

protected activity was “exemplary” and that AHISD “failed to follow its own

policy in firing her.” See Memorandum Opinion at pp. 14-15.

       In accepting these allegations as “true” for the purposes of deciding

jurisdiction, the Opinion embarks on an extreme departure from black letter Texas

common law requiring a court to disregard summary judgment allegations

conclusively negated by the jurisdictional evidence. See Foreman, 392 S.W.3d at

273.

       Contrary to findings in the Memorandum Opinion, jurisdictional evidence

cited below conclusively established that Clark’s record was not “exemplary” prior

to her filing an EEOC charge.

       The Memorandum Opinion accepted as true Clark’s assertion that her record

was “exemplary” prior to filing her EEOC charge and that she did not receive a

negative evaluation until 2009. See Memorandum Opinion at pp. 14-15. In

accepting this “truth” the Opinion ignored undisputed negating evidence that her



                                       15
supervisor had addressed with her significant performance deficiencies prior to her

EEOC filing. (Supp. CR, Vol. I. 181-182). Clark’s May 15, 2008 written complaint

acknowledges a March 2008 reprimand for her having continued to take her

daughter into the workplace. (Supp. CR, Vol. I. 216-17). Nor did her allegation of

having a record of “exemplary” performance, accepted as “true” in the Opinion,

account for uncontroverted evidence that prior to her EEOC charge her supervisor

had been addressing and attempting to correct plaintiff’s performance deficiencies

as they related to her relationship with her peers, and giving her a directive in the

purported “exemplary” performance appraisal that Clark needed to address

deficiencies in professional communication. (Supp. CR, Vol. I. 181-182, 399-400;

see also Appellant’s Reply Brief, pp. 4-7).

      Nor did the Opinion account for uncontroverted jurisdictional evidence that

in the month before she filed her charge, Clark’s supervisors met with her on

numerous occasions to address and remediate significant performance issues,

including: (i) failure to follow previous directives to not leave her children

unattended at work; (ii) performance concerns over her duties; (iii) failure to work

cooperatively with others; and (iv) failures to comply with AHISD’s policies

regarding the process for filing workplace grievances. (Supp. CR, Vol. I. 227-231;

see also Appellant’s Brief, pp. 13-15).




                                          16
      Most significantly, the Memorandum Opinion apparently relied on Clark’s

bare and well-controverted allegations that her employer had failed to follow its

policies in terminating her employment. See Memorandum Opinion at p. 13. A

thorough review of the submitted records fails to reveal a single piece of evidence

that Clark’s employer failed to follow both policy and established law in

dismissing her.

      Rather, the record and a mere reading of the polices cited reveals that the

purported policy failing cited in the Memorandum Opinion had nothing to do with

the policy or procedures applicable to Clark’s termination, but instead referred to

her supervisor’s requirement in Clark’s growth plan that she “timely report her

workplace concerns.” Memorandum Opinion at p. 15. The result is that quite

contrary to the Memorandum Opinion, Clark did not provide any competent

evidence that her employer had failed to comply with its policies and procedures in

terminating her employment, a process, set in stone through school district policies

and long-standing law (see Appellant’s Reply Brief, pp. 18-22), a process that was,

pursuant to the only competent evidence offered to the Panel, followed to the letter.

      The relevant facts of both cases cited in the Memorandum Opinion further

confirm that, in order to serve as circumstantial evidence of retaliation, an

employer’s policy failures must relate to the policies and procedures for

terminating the employee. In Bacon v. EDS, 219 Fed. Appx. 355, 357 (5th Cir.



                                         17
2007), the court considered a plaintiff’s allegations that her employer violated its

protocols for ranking employees during a Reduction-in-Force when she was given

a low ranking. See id. at 356-57. Similarly in Gallacher, the court considered a

plaintiff’s allegations that her employer violated its policies in failing to grant her

sufficient sick-pool leave when she was terminated at the end of that leave. See

Gallacher, 2015 WL 1026473, at *6.

      In an unsupported expansion of the Bacon and Gallacher holdings, the

Memorandum Opinion holds that Clark’s supervisor’s alleged misapplication of

AHISD’s grievance policy responding to her sexual harassment complaint, is

evidence of retaliation. But, the policy referenced had nothing to do with the

procedures followed by AHISD in terminating Clark’s employment. This

expansive holding sets a dangerous precedent in diverging from prior federal and

state holdings that ignores controverted allegations and extends the reach of the

authorities that recognize only a violation of dismissal policies as evidence of

retaliation. See Foreman, 392 S.W.3d at 273; see also Bacon and Gallacher, supra.

      In that nearly all employers have a policy forbidding retaliation, should the

Memorandum Opinion remain as the decision of this Court, a plaintiff’s allegation

that such policy had been violated would always support an inference of causation.

In addition to an unprecedented expansion of the authorities cited, the




                                          18
Memorandum Opinion’s holding would expose every plaintiff’s case to proof of

retaliation by circuitous reasoning.

                         CONCLUSION AND PRAYER

      For such reasons, as well as those briefed in AHISD’s Brief and Reply Brief,

the Memorandum Opinion’s holding that Clark has established each element of her

same-sex hostile work environment and retaliation claims is incorrect, and must be

corrected by this Court on en banc review. If left undisturbed, the Memorandum

Opinion sets expansive new precedent that deviates from prior federal and state

opinions in Title VII and TCHRA cases. We respectfully request the Court grant

this motion for en banc reconsideration and issue an opinion correcting the

Memorandum Opinion’s errors.




                                       19
                                    Respectfully submitted,

                                    SCHULMAN, LOPEZ, & HOFFER, LLP



                                    Robert A. Schulman
                                    Texas Bar No. 17834500
                                    Email: rschulman@slh-law.com
                                    Leonard J. Schwartz
                                    Texas Bar No. 17867000
                                    Email: lschwartz@slh-law.com
                                    Bryan P. Dahlberg
                                    Texas Bar No. 24065113
                                    Email: bdahlberg@slh-law.com
                                    517 Soledad Street
                                    San Antonio, Texas 78205-1508
                                    Telephone: (210) 538-5385
                                    Facsimile: (210) 538-5384

                                    ATTORNEYS FOR APPELLANT

                        CERTIFICATE OF SERVICE

      I hereby certify that on this 5th day of November 2015, a true and correct
copy of the foregoing document has been delivered by email to counsel of record
for Appellee in this proceeding as follows:

      Mr. Matthew R. Pearson, Gravely & Pearson, L.L.P., 425 Soledad
      Street, Suite 600, San Antonio, Texas 78205,
      Email: mpearson@gplawfirm.com.

      Mr. Brendan K. McBride, McBride Law Firm, 425 Soledad Street,
      Suite 600, San Antonio, Texas 78205,
      Email: brendan.mcbride@att.net.



                                    Attorney for Appellant



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                       CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
Appellant’s Motion for En Banc Reconsideration contains 4031 words (excluding
the caption, table of contents, table of authorities, signature, certificate of service,
and certificate of compliance).

       I further certify that this is a computer-generated document created in Word
for Mac, using 14-point typeface for all text, except for footnotes, which are in 12-
point typeface. In making this certificate of compliance I am relying on the word
count provided by the software used to prepare this document.

      I understand that a copy of this motion may be posted on the Court’s website
and that the electronically filed copy of the motion becomes part of the Court’s
record.

      Copies have been sent to all parties associated with this case.



                                        Robert A. Schulman




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