      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00680-CV



                                    Vic A. Gardner, Appellant

                                                  v.

      Greg Abbott, Attorney General of Texas; The State of Texas; and Glenn Elliott,
                                Individually, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
    NO. D-1-GN-09-003804, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                                           OPINION


               Appellant Vic A. Gardner contends that he was forced to quit his job in a

child-support call center due to excessive scrutiny by a supervisor who, he alleges, was hostile to his

sexual orientation. Asserting claims for employment discrimination under various provisions of the

Texas Constitution,1 Gardner sued his former supervisor, Glenn Elliott; the State of Texas; and

Attorney General Greg Abbott in his official capacity (collectively, the State or appellees), seeking

reinstatement, backpay, lost medical and retirement benefits, and injunctive and declaratory relief.

The trial court granted the State’s plea to the jurisdiction and motion for summary judgment and

rendered judgment that Gardner take nothing on his claims. On appeal, Gardner asserts that (1) the

trial court abused its discretion in not specifying the grounds on which summary judgment was


       1
           Gardner alleged as follows: “Defendants’ constructive discharge of Plaintiff violated
Plaintiff’s right to be free from discrimination because he is gay under the Texas Constitution,
including the provisions that protect Texas citizens [sic] right to equal protection, right to privacy,
right to substantive due process and provisions of the Texas Equal Rights amendment.”
granted; (2) the appellees were not immune from the requested equitable, declaratory, injunctive, and

damages relief; and (3) summary judgment was improper because fact issues exist as to whether he

was constructively discharged because of his sexual orientation. We will affirm.


                      FACTUAL AND PROCEDURAL BACKGROUND

                In October 2006, Gardner was hired as a Child Support Officer (CSO) in the Tyler

Regional Customer Service Center (Tyler Call Center) for the Office of the Attorney General’s Child

Support Division (AG’s Office).       As a CSO in the Tyler Call Center, Gardner’s primary

responsibility was to respond to routine inquiries and complaints regarding child-support case

processing and to transfer or seek additional assistance if further action on a matter was required.

A total of 28 CSOs were employed to answer telephones at the Tyler Call Center during Gardner’s

tenure there.

                As conceded by all parties, the job of a CSO is extremely demanding and requires

rigorous oversight to meet the following goals, which are mandatory and applicable to child-support

call centers statewide: (1) 90% of calls must be answered (i.e., no more than 10% of customers

disconnect the call before speaking to a CSO); and (2) the average hold time must not exceed two

minutes. To ensure that the call center attains these goals, each CSO is given a call quota, which is

determined by length of service in the call center. To help the CSOs manage both the individual and

call-center goals, a large electronic board is prominently featured in the call center and acts like a

news ticker, displaying how many calls are on hold, the average length of time callers have been

holding, and the answer rate. This board serves as a constant visual reminder of call demands and

performance expectations.



                                                  2
               The following summary-judgment evidence is essentially uncontroverted. Due to the

high call volume on most days, CSOs typically spend 40 hours per week on the telephone, taking

calls in close succession and often dealing with unhappy callers. Because the job can be stressful,

applicants for CSO positions are informed during the application process that the job is demanding

and that CSOs are closely monitored by supervisors for policy compliance to help ensure that

employees stay on task so that quotas and goals are satisfied. It is undisputed that strict monitoring

is regularly utilized to ensure the call center’s objectives are met. Supervisors make note of arrival

time, length of lunch breaks, the length of each call answered, the number of calls answered, and the

length of personal breaks (including restroom visits). In fact, daily reports are generated showing

when CSOs sign on and off as being available to take calls, and if an employee signs in more than

one minute late, a copy of the report is placed in the employee’s personnel file. All breaks, including

lunch breaks, are pre-scheduled; hours worked and employee leave are closely monitored; and

frequently, there is no time for unscheduled breaks. Due to strict monitoring, supervisors are aware

of and make note of employee violations, some of which might seem minor in many employment

settings but are viewed as significant in the intense call-center environment. This is so because the

amount of missed or idle time can have a significant impact on the ability of the call center to meet

its goals. As Gardner’s supervisor, Erin Henriksen, testified, “If every CSO is 30 seconds late in

signing onto the phones, more than 14 minutes of work time is lost and as many as 200 calls could

be missed.”

               In addition to having their work behavior monitored, the calls the CSOs answer are

recorded and regularly “graded” for compliance with AG’s Office policies. An employee may




                                                  3
receive a grade deduction on a call for a wide variety of deficiencies, including not asking for the

customer’s contact number, failing to use appropriate responses, failing to use empathetic phrasing,

failing to transfer a call when additional assistance is required, inappropriately transferring a call that

the CSO should have been able to resolve, and inadequate processing procedures. A relatively small

number of calls are monitored on a monthly basis for each employee, and a satisfactory score for

calls is 90 or better.

                In addition to the foregoing procedures, various initiatives are implemented from

time to time to help drive call-center efficiency and customer satisfaction. As part of these

initiatives, additional calls meeting other specified criteria are monitored and graded. For example,

in January 2009 an initiative (January 2009 initiative) was implemented to reduce the number of

calls unnecessarily transferred out of the call center to the field office. In connection with that

initiative, all calls during a two-day period that were one minute or less in duration and that were

transferred out were reviewed and graded to determine whether the transfer was warranted. Unlike

the regular monthly monitoring of calls, every call during the two-day period meeting the initiative

criteria was graded, and the number of graded calls for any particular CSO was dependent on how

many of that employee’s calls met the stated criteria.

                If a monitored call receives an unsatisfactory score, or if a CSO violates the call

center’s policies, the employee is subject to discipline under a progressive discipline structure that

ranges from oral and written warnings up to and including termination for repeated violations or

egregious first-time violations.      Policy violations and low call scores are also taken into

consideration during annual employee evaluations. In the annual evaluations, employees are rated

on customer service (as determined by observations of both monitored and non-monitored calls);


                                                    4
“partners in quality” (based on average scores of monitored calls); answering incoming calls (based

on the average number of calls answered per day); appropriate handling of “locate” information

(which involves appropriately documenting information in the call center’s computer system);

resolving customer inquiries (based in part on the CSO’s ability to resolve the customer’s problem

without transferring or obtaining additional assistance or only doing so when appropriate for the

matter); teamwork; punctuality and leave; confidentiality; and standards and ethics. The highest

score available in each category and overall is “outstanding,” which is followed by “very good,”

“satisfactory,” “needs improvement,” and “unsatisfactory.”

                While Gardner was employed at the Tyler Call Center, Henriksen was his immediate

supervisor, and Elliott was the call-center manager. Both Henriksen and Elliott monitored the

activities in the call center, but disciplinary reports and annual evaluations were principally prepared

by Henriksen and submitted to Elliott for his review. It is undisputed that Gardner received oral and

written disciplinary warnings from Henriksen on several occasions but nevertheless received high

scores on his annual evaluations.

                The record reflects that, while employed as a CSO, Gardner received the following

written and oral warnings: (1) written warning in July 2007 for poor performance on a call with a

customer and violation of the personal internet usage policy; (2) written warning in June 2008 for

failing to treat members of the public and fellow employees with dignity and respect and excessive

conversations with field office employees during call transfers;2 (3) written warning for excessive


       2
         As noted in the disciplinary report, Gardner was disciplined for inappropriate comments
and poor call handling, including the following:

        (1) excessive conversation with an employee in a field office during a call transfer
        (over 2 minutes of chat time on a call that lasted a total of 3:02 minutes in one call

                                                   5
idle time and time away from his desk in August 2008; (4) written warning and counseling following

the January 2009 initiative for inappropriately transferring 17 of 21 calls, spending too much time

talking on the phone during call transfers, and making racist, profane, and unprofessional comments

during several of the monitored calls;3 and (5) counseled at some unspecified time for referring to

customers as “whores on hold” and stating that single-mother customers needed to refrain from

“clipping their toenails on ceiling fans.” Although provided an opportunity to comment in writing

on disciplinary matters, Gardner only objected to the August 2008 write-up concerning his excessive

idle time and desk absences. Other than the August 2008 disciplinary write-up, Gardner has not

disputed that he was appropriately disciplined; he has only alleged that discipline was not




        and more than 1 minute of chat time in another call);

        (2) referring to a manager in the field office as “Hitler” and stating that he would put
        a “bushel of mistletoe” on his “coattail” for that manager; and

        (3) complaining during a call transfer to the field office that he had been warned
        about talking too long during call transfers and remarking to a former co-worker, “I
        can’t talk to anybody. Isn’t that retarded? . . . You haven’t forgotten how this place
        is ran [sic]? Blessing to get out. I’ve had it.”

        3
         Some of the comments to the field-office employees included: “I’m having a nervous
breakdown. Isn’t this crazy? My last caller told me to shut the F up. . . . Y’all are all so smart-assey
in Texarkana. . . . I don’t give a shit. . . . I’m getting the Hell out of this shit. . . . Dillard’s has
offered me a full-time job–we’re going to talk. I could have stayed in bed this morning, but if I
would have sicked out, I would have gotten my ass reamed out. . . . Some of our customers have
nothing better to do than sit on their ass waiting on a check. . . . It’s been a bitch, hadn’t [sic] it?”
He was also heard making what have been characterized as racist, stereotypical comments about a
customer with an Asian name possibly being the sister of an Asian employee in the field office.

                                                   6
consistently meted out for like conduct, as far as he knows, and that his supervisors, Elliott and

Henriksen, engaged in derogatory talk similar to that for which he was disciplined.4

               In addition to the foregoing interim disciplinary matters, Gardner was formally

evaluated twice during his tenure at the call center—in April 2007 and April 2008—and his overall

evaluation both times was “very good.” His evaluation in each component remained the same

year-over-year, except that “partners in quality” rose from “satisfactory” to “very good” in 2008 and

“locate” dropped from “outstanding” to “very good.” Although areas of needed improvement were

noted each year—including the need to improve customer-service skills and not missing work on

heavy call days—Gardner’s annual reviews were mostly positive. There are notations in each review

about Gardner’s late arrivals/sign-ons, and Gardner was admonished in 2007 for failing to promptly

notify management if he would be unexpectedly late and praised in 2008 for always doing so. In

2008, there is a further notation that Gardner had been spending too much time socializing with

coworkers in the office and on the phone. Although provided an opportunity to comment in writing

on these reviews, Gardner provided no responsive comments.

               In addition to his positive annual evaluations, Elliott recommended Gardner for a

one-time merit pay raise in May 2008. Elliott’s request was granted and made effective in the

summer of 2008.

               Despite receiving at least some positive feedback, Gardner, who self-identifies as

homosexual, began to suspect that Elliott was hostile to his sexual orientation. His suspicion was

first raised following a work-related costume event in October 2007 and was further bolstered by



       4
         Although Elliott disputes that he used any such derogatory language and has denied hearing
others use such language, we take Gardner’s testimony as true for purposes of our review.

                                                 7
subsequent events. In October 2007, Gardner arrived at the costume event dressed as a geisha girl,

and he contends that Elliott repeatedly referred to him derogatorily as a “Geisha Guy” and then failed

to include a photo of Gardner in costume when photos of other costumed employees were distributed

to the office. When Gardner called the omission to Elliott’s attention, Elliott explained that he was

having trouble uploading the photo and would try to resend. Gardner, however, got the impression

that Elliott did not want to distribute the photo.5 For the October 2008 costume event, Gardner came

dressed as a ballerina. He believes that Elliot took issue with this costume because another

employee, who was also homosexual, said that Elliott would “fall out” when he saw Gardner’s

costume. There is no allegation that Gardner was not included in any photo distribution following

the October 2008 event.

                Gardner also maintains that, during a casual conversation that occurred around

June 1, 2008, Elliott, who is a member of a Baptist church, asked Gardner how his father, who was

a Baptist preacher, felt about his lifestyle.6 Gardner testified that he felt that this conversation was

discriminatory because heterosexual people are not asked how their parents feel about their lifestyles.




       5
          Although there is some evidence that Gardner’s photograph in the geisha girl costume was
included in an internal agency newsletter, there is no evidence directly disputing Gardner’s claim that
Elliott did not distribute his photograph.
       6
         Elliott testified that this conversation actually took place the day of either the 2007 or 2008
costume events and was precipitated by Gardner’s comment that his father was going to have a
“stroke” over his costume. Elliott did not recall whether it was he or someone else who asked if
Gardner’s father took issue with his lifestyle. To the extent the variance in recollection is material,
we view the evidence in the light most favorable to Gardner. See Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003).

                                                   8
               In June 2008, Gardner contends that Elliott threatened his job because Gardner was

joking during call transfers to the field office and talking too long.7 This appears to have been in

connection with the written warning Gardner received around the same time. Following this

incident, Gardner contacted an ombudsman at the AG’s Office to complain about Elliott’s

management style.      In an undated, unaddressed email that Gardner reportedly sent to the

ombudsman, Gardner stated that Elliott was harassing him by calling him into his office and sending

emails that would not stop until Gardner started ignoring them. Gardner’s email further complained

about Elliott’s threatening his job. He expressed displeasure with his work environment, stating that

it was no longer pleasant to work there and it felt threatening. He further expressed that neither he

nor his coworkers could enjoy working in the call center due to the hostile environment Elliott’s

management style created. He noted that the stressful environment was leading to high turnover and

further observed that some employees had been fired. He closed by stating, “I am a single gay man

and feel that this is a problem for my manager [Elliott].” As the basis for this belief, he referenced

Elliott’s “Geisha Guy” comments at the October 2007 costume event and the fact that Elliott had not

included a photo of him in costume when he distributed photos from the party. He did not reference

any other specific incidents. The ombudsman advised Gardner to take his complaints up the chain

of command to Elliott’s supervisor.




       7
         According to Gardner, every time he was disciplined or counseled, Elliott would say it
would be up to others in the AG’s Office in Austin as to whether Gardner would continue to have
a job. There is no indication that Elliott expressed something different on this occasion.

                                                  9
                 In response, Gardner scheduled a meeting with Elliott’s supervisor, Chip Arnold, at

the beginning of July 2008.8 During that meeting, Gardner again complained about Elliott’s “harsh”

management style. He said that Elliott micromanaged him, which he described as watching

everything he did, looking into his computer, and reading his emails. He asserted that he felt

harassed by this behavior and that other employees likewise felt harassed and “stressed out” by the

environment Elliott created by walking the aisles and watching everyone. He complained that

Elliott’s behavior made the work environment unenjoyable for everyone. When asked for specific

instances, Gardner offered that Elliott questioned him when he was absent from his desk due to

stomach trouble and had used more than the allotted idle time; Gardner believed this was none of

Elliott’s business. He also said that Elliott questioned him on another occasion when he was not

ready to answer calls at 8:00 in the morning because he was eating crackers and still had food in his

mouth. There is no evidence that, at this meeting, Gardner advised Arnold of his belief that he was

being subjected to excessive scrutiny based on his sexual orientation, and Arnold affirmatively

testified that Gardner did not. Arnold testified that he advised Gardner that it was Elliott’s job to

closely monitor employee behavior in the call center and further told him that the things he

complained about were part of Elliott’s job and were to be expected due to the demanding nature of

a call center.

                 Arnold also recommended that Gardner and Elliott meet together, which they did

shortly thereafter. Gardner contends that, at that meeting, Elliott was upset by Gardner’s complaint



        8
         Arnold testified that the ombudsman had contacted him about Gardner’s complaint and
asked him to look into it. The record reflects that, at the time Gardner initially complained to the
ombudsman, Arnold was out of the office for medical reasons but that he contacted Gardner to
schedule a meeting as soon as he returned to work.

                                                 10
to Arnold. He says that Elliott yelled at him, banged his hand on the desk, denied being a liar, stated

that he was not out to get him, and that he wanted to be “friends” with Gardner. Gardner said he told

Elliott that he was not going to change his impression about Elliott’s work style despite his

protestations. Gardner later testified that he thought it was odd that Elliott had expressed a desire

to be friends.

                 Gardner’s next interaction with Arnold occurred in August 2008, when he emailed

Arnold a written response he wrote after he was disciplined for excessive idle time and time away

from his desk. The response was also emailed to Elliott, who forwarded it to the ombudsman after

Gardner resigned. In the email response, Gardner explained his reasons for being absent from his

desk and touted his job performance, although he did acknowledge that he engaged in personal talk

in the office. However, despite acknowledging the asserted behavior, he observed that he was still

meeting his call quotas and was thus not “burdening” his coworkers, who he alleged also engaged

in idle conversation. He also indicated that he had sought assistance for work-related stress through

an employer-sponsored program. He closed with a complaint that he felt like he was “harassed every

day when I come to this office.” In this written response, he did not reference any inappropriate

actions, activities, or comments or refer to disparate treatment based on his sexual orientation.

Gardner testified that he never received a response from Arnold. Around the same time, Gardner

may also have contacted the ombudsman; the record is unclear, however, as to what may have been

communicated between Gardner and the ombudsman at that time.

                 Evidently, Gardner had no significant work-related complaints between September

2008 and January 2009, but things changed at the start of the new year. On January 13, 2009,

Gardner was counseled by Elliott and Henriksen for (1) unnecessarily transferring 17 of 21 calls


                                                  11
during the January 2009 initiative, (2) averaging a 51.49 on the transferred calls, (3) using sexist,

racist, profane, and unprofessional comments during several of the monitored calls,9 (4) engaging

in idle conversation during call transfers that caused customers to hold unnecessarily for extended

time and wasted the field-office employees’ time, and (5) using the internet for personal reasons

while calls were on hold and waiting to be answered, in violation of the internet-use policy.

Unbeknownst to Gardner, Elliott had on the same day initiated preliminary steps to recommend that

Gardner’s employment be terminated, citing Gardner’s unwillingness or inability to address

previously expressed concerns about making himself unavailable to take waiting calls and engaging

in personal talk while phone-based customers were on hold waiting to be assisted.

               On January 22, 2009, Gardner tendered his resignation. On the same day, he filed

a written complaint with the ombudsman alleging that he was harassed and singled out for scrutiny

by Elliott. In his written complaint, he referenced the July 2008 meetings with Arnold and Elliott,

the August 28 write-up for idle time and personal talk, and the response he emailed to Arnold in

August 2008. He stated that “[a]fter that incident in August and September [Elliott] has left me

alone until recently.” Referring to the January 13 disciplinary write-up, Gardner said “I don’t have

a problem with the write up.” He claimed, however, that at the end of the counseling session, Elliott

told him “you are who [you] are and you’re just being Vic, but don’t be so OUT at work.”10



       9
          During the calls, Gardner was heard saying that he was planning to quit and had been
offered a full-time job at Dillard’s where he had been working part-time as a shoe salesperson.
       10
           Elliott denies that he made this comment. Henriksen, the only other person present at the
meeting concurred in Elliott’s recollection. In her affidavit, she averred that “Mr. Elliott
acknowledged that Mr. Gardner is very friendly and talkative and told him that it was okay to say
hello, but that he should quickly move on to the purpose of the call. Mr. Elliot[t] said something
like, ‘Don’t be so Vic. Just a quick hello . . . how-are-ya . . . okay, are you ready for the case

                                                 12
(Emphasis in original.) He felt that this statement was an inappropriate and unprofessional reference

to his sexual orientation, and he further complained about the stress Elliott caused as the call-center

manager. He asked that his complaint be resolved by removing Elliott as manager of the call center.

               In November 2009, Gardner sued Elliott, Abbott, and the State of Texas, asserting

claims under various provisions of the Texas Constitution.            Gardner alleged that he was

constructively discharged based on his sexual orientation and he sought “injunctive relief” in the

form of (1) reinstatement to a comparable position; (2) an order precluding the appellees from

discriminating against him on the basis of his sexual orientation following reinstatement; (3) an order

directing the appellees to pay him back pay from the date of his constructive discharge through the

date of his reinstatement; (4) a declaration that his right to be free from sexual-orientation

discrimination was violated; and (5) reasonable and necessary attorney’s fees.

               After filing a general denial and asserting several affirmative defenses, the State filed

a plea to the jurisdiction challenging the availability of some of the requested remedies based on the

State’s immunity from suits for money damages. The State also argued that, as a matter of law,

(1) there is no private right of action for money to remedy the particular constitutional violations

alleged in Gardner’s lawsuit, and (2) Gardner’s request for an injunction mandating reinstatement

and nondiscrimination following reinstatement would be ineffective against Elliott in his individual

capacity and should have been asserted against him in his official capacity. The plea was based

exclusively on the claims made in Gardner’s original petition; no supporting evidence was attached.




number.’” Because this evidence is disputed, we take Gardner’s version of events as true for
purposes of our review.

                                                  13
                The trial court granted the plea to the jurisdiction in an interlocutory order, and more

than a year later, Gardner amended his petition to add a request for “injunctive relief” conferring

coverage of or reimbursement for medical bills incurred following his resignation and compensating

him for loss of benefits following his resignation. In response, the State filed a second plea to the

jurisdiction, asserting the same arguments for relief that were asserted in its first jurisdictional

challenge. As in the first plea to the jurisdiction, the State did not assert a jurisdictional bar to

Gardner’s request for reinstatement and an injunction precluding further discrimination; as to those

claims for injunctive relief, the second plea challenged only the effectiveness of such relief against

Elliott in his individual capacity.

                While the second plea to the jurisdiction was pending, the State filed a combined

traditional and no-evidence motion for summary judgment on a number of grounds, including the

following: (1) no evidence that Gardner was constructively discharged; (2) no substantive right to

employment as a matter of law; (3) no evidence to support Gardner’s equal-protection claim; (4) no

denial of equal protection as a matter of law; (5) no violation of Gardner’s right to privacy as a

matter of law; and (6) the Texas Commission on Human Rights Act provides Gardner’s exclusive

remedy for invidious workplace discrimination.

                Gardner filed a responsive motion with supporting evidence.11 In his deposition,

which was attached to the response, Gardner elaborated on his discrimination claims beyond the



        11
           Gardner also objected to some of the State’s summary-judgment evidence, but he failed
to obtain a ruling on those objections. To the extent we could infer that the trial court implicitly
overruled his objections, Gardner does not complain on appeal that the trial court erred in overruling
the objections. Therefore, the issue is waived. See Secure Comm, Inc. v. Anderson, 31 S.W.3d 428,
430-31 (Tex. App.—Austin 2000, no pet.) (holding that appellant waives right to complain of ruling
to which no error was assigned).

                                                  14
specific incidents previously recounted. Gardner testified that after the October 2007 costume event,

he began feeling like he was being excessively scrutinized in the workplace by Elliott. Although he

affirmed that Henriksen had instituted the vast majority of the disciplinary actions, Gardner did not

believe that Henriksen discriminated against him; however, he believed Henriksen was acting as

Elliott’s pawn. He testified that many other CSOs felt harassed by Elliott’s close monitoring and

“micromanagement,” including heterosexual employees. He also verified that close scrutiny was

par for the course in the call center. However, he believed that he was being singled out for closer

scrutiny on a more regular basis than his co-workers.

               As additional evidence of closer scrutiny, Gardner complained that there were several

incidents when he went to the restroom and Elliott also came to the restroom at the same time. He

also said that Elliott once questioned him about what he was doing when he appeared to be distracted

from his work while he was inputting contacts into a new cell phone while answering calls. It is

unclear whether Gardner complained about this incident to anyone, but he cites it as an instance of

excessive scrutiny. He further pointed to two occasions on which he had more calls monitored than

other employees—17 monitored calls over two days in August 2008 and 21 monitored calls over two

days in January 2009. Gardner testified that the employee who graded his calls in August 2008

apologized to him for doing so and said that Elliott had instructed her to grade the calls and to comb

through them looking for any errors. There is no other evidence concerning the circumstances of the

August 2008 call monitoring or whether Gardner suffered adverse consequences as a result. In

comparison, the State produced uncontroverted evidence that the 21 calls that were monitored in

January 2009 were part of the initiative to reduce unnecessary call transfers and that Gardner had

more calls monitored because he had the most transferred calls that met the initiative criteria. Other


                                                 15
than these specific incidents, Gardner generally felt that Elliott watched him more than other

employees, reviewed more of his calls, and reviewed more of his emails. Although Gardner

understood that it was Elliott’s job to do these things, his impression was that Elliott was doing

them more frequently to Gardner and that Henriksen was acting under Elliott’s orders in more

closely scrutinizing his activities. Gardner testified that other employees agreed with him that he

was being harassed.12

               The trial court granted both the State’s second plea to the jurisdiction and its summary

judgment motion, without stating the basis for its ruling, and rendered final judgment that Gardner

take nothing on his claims. Gardner’s motion for new trial was overruled by operation of law.

               In four issues on appeal, Gardner complains that (1) the trial court abused its

discretion in not specifying the grounds on which summary judgment was granted; (2) the appellees

were not immune from the requested equitable, declaratory, injunctive, and damages relief; (3) fact

issues exist as to whether Gardner’s sexual orientation was a motivating factor in the State’s

constructive discharge of him; and (4) fact issues exist as to whether Gardner was constructively

discharged because of his sexual orientation. We confine our discussion to issues one and four

because those issues are dispositive of Gardner’s claims on appeal. See Tex. R. App. P. 47.1 (“The

court of appeals must hand down a written opinion that is as brief as practicable but that addresses

every issue raised and necessary to final disposition of the appeal.”).




       12
         Gardner’s deposition testimony is replete with hearsay statements allegedly made by
his coworkers—both affirmative statements and statements allegedly made in agreement
with Gardner’s own hearsay statements. The State, however, did not object to Gardner’s
summary-judgment evidence.

                                                 16
                                           DISCUSSION

               In his first appellate issue, Gardner asserts that the trial court abused its discretion in

granting summary judgment without stating the grounds on which it based its ruling. We hold that

two well-established summary-judgment principles are fatal to Gardner’s argument.

               First, our summary-judgment jurisprudence has long required that, when the trial

court does not state the grounds on which summary judgment was granted, we must affirm the

judgment if any of the theories presented to the trial court and preserved for appellate review are

meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Carr

v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). A requirement that the trial court state its reasons for

granting summary judgment is discordant with this principle.

               Second, although rule 296 of the Texas Rules of Civil Procedure authorizes a party

to request findings of fact and conclusions of law following a bench trial, this rule does not

apply in the summary-judgment context. See, e.g., IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,

938 S.W.2d 440, 441 (Tex. 1997) (holding that findings of fact and legal conclusions are neither

necessary nor proper in summary judgment proceeding). Indeed, it is well established that

“[f]indings of fact and conclusions of law have no place in a summary judgment proceeding. If

summary judgment is proper, there are no facts to find, and the legal conclusions have already been

stated in the motion and response.” Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 810 (Tex.

App.—Dallas 2006, pet. denied) (internal citations omitted); see IKB Indus., 938 S.W.2d at 441

(same); Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (holding that appellate deadlines

are not extended by request for findings of fact and conclusions of law following summary judgment

because they “have no place in a summary judgment proceeding”). As these cases suggest, the trial


                                                  17
court’s precise legal conclusions are neither essential nor particularly germane to the disposition of

an appeal from a summary judgment because the grounds for granting summary judgment are limited

to those specified in the motion, and such judgments are reviewed de novo. See, e.g., Valence

Operating Co. v. Dorsey, 164 S.W.3d 656, 661 (Tex. 2005); Knott, 128 S.W.3d at 215. Although

Gardner might prefer for the trial judge to “narrow” the issues on appeal by ruling on each ground

stated in the motion for summary judgment, requiring the trial court to do so would have little

practical effect in narrowing the appellate issues because (1) denied grounds may be asserted by

cross-point on appeal from an order granting summary judgment and (2) in the interest of judicial

economy, “an appellate court may consider other grounds that the movant preserved for review and

the trial court did not rule on.” See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex.

1996). Although Gardner frames the issue in a slightly different vein from IKB, Linwood, and

Willms, his substantive complaint is that the trial court failed to specify its legal conclusions, and

these cases are dispositive of that issue. Because Gardner has provided us no reason to doubt the

continued vitality of those cases, we overrule his first appellate issue.13


        13
           In arguing that the trial court was required to specify the grounds for summary judgment,
Gardner relies exclusively on In re Columbia Medical Center, 290 S.W.3d 204 (Tex. 2011). That
case, however, is procedurally and substantively inapposite. In Columbia Medical, the trial court
had granted a motion for new trial and overturned a jury verdict “in the interests of justice and
fairness,” but did not further elaborate on the grounds for rejecting the jury’s verdict. Id. at 209. The
Texas Supreme Court held that the trial court’s action was arbitrary and an abuse of its discretion
because the court failed to detail the reasons for disregarding the jury’s verdict. Id. at 213. In
so holding, the court cited numerous policy reasons, none of which are applicable in a
summary-judgment context. As noted by the court in Columbia Medical, trial courts have
historically had broad discretion to grant new trials sua sponte following a jury verdict, but that
discretion is not without limits. Because of the sanctity with which we regard jury verdicts, the court
held that a new trial setting aside a jury verdict may not be granted “in the interest of justice” unless
the court specifies its reasons. Id. at 211-12. The policy concerns addressed by the supreme court
in Columbia Medical are inapplicable here because summary judgments may only be granted based
on legal grounds specifically identified in a motion for summary judgment and the judgments are

                                                   18
               In his fourth appellate issue, Gardner asserts that summary judgment was improper

because he presented some evidence that he was constructively discharged and thus suffered an

injury from Elliott’s allegedly discriminatory conduct.14

               For remedial purposes, constructive discharge is functionally the same as an actual

termination. See Pennsylvania State Police v. Suders, 542 U.S. 129, 148 (2004); Waffle House, Inc.

v. Williams, No. 02-05-00373-CV, 2011 WL 3795224, at *7 (Tex. App.—Fort Worth Aug. 25, 2011,

pet. denied) (mem. op.). In determining whether an employee was constructively discharged, the

issue is whether “‘the employer makes conditions so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign.’” Baylor Univ. v. Coley, 221 S.W.3d 599,

605 (Tex. 2007) (affirming pattern jury charge definition of “constructive discharge” as correct

statement of law); accord, e.g., Suders, 542 U.S. at 141 (defining constructive discharge in

sexual-harassment case); Cox v. Waste Mgmt. of Tex., Inc., 300 S.W.3d 424, 433 (Tex. App.—Fort

Worth 2009, pet. denied) (same). “The test is objective; the question is not whether this employee

felt compelled to resign, but whether a reasonable employee would have felt so compelled.” Barrow

v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 n.19 (5th Cir. 1994); see also Suders, 542 U.S. at 141

(constructive discharge inquiry is objective); Cox, 300 S.W.3d at 435 (constructive discharge claim

is analyzed using reasonable-person test, not employee’s subjective opinions). “It is necessary to


reviewed de novo on appeal. We are thus unpersuaded that Columbia Medical bears on the issue
presented here.
       14
           The standards for reviewing a summary judgment are well established and undisputed on
appeal. See, e.g.,City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007); Fort Worth Osteopathic Hosp., Inc.
v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004); see also Tex. R. Civ. P. 166a(i). Accordingly, we need not rearticulate them for purposes of
our analysis.

                                                19
examine the conditions imposed, not the employer’s state of mind.” City of Fort Worth v. DeOreo,

114 S.W.3d 664, 677 (Tex. App.—Fort Worth 2003, no pet.).

               The parties do not dispute that the foregoing principles are applicable to this case.

They disagree, however, as to the extent of intolerability that must be established when a

constructive-discharge claim is based on a hostile work environment. The State asserts that Gardner

must show something more than conduct that would minimally qualify as a hostile work

environment, but Gardner’s counsel asserted at oral argument that it is sufficient if a fact question

is raised regarding the existence of a hostile work environment.

               For an atmosphere of hostility based on a protected trait to be actionable, the

offending behavior must be sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment. See, e.g., Suders, 542 U.S. at 146-47

(articulating hostile-work-environment standard in statutory discrimination case); Waffle House, Inc.

v. Williams, 313 S.W.3d 796, 805-06 (Tex. 2010) (discussing constructive discharge and

hostile-environment legal standards). In Waffle House, the Texas Supreme Court considered a

hostile-work-environment claim based on the employee’s gender and described the requisites of such

a claim as follows:


       An abusive environment can arise “[w]hen the workplace is permeated with
       ‘discriminatory intimidation, ridicule, and insult.’” Courts look to all the
       circumstances in determining whether a hostile work environment exists, including
       the frequency of the discriminatory conduct and whether it unreasonably interfered
       with the employee’s work performance. “All of the sexual hostile environment cases
       decided by the [United States] Supreme Court have involved patterns or allegations
       of extensive, longlasting, unredressed, and uninhibited sexual threats or conduct that
       permeated the plaintiffs’ work environment.” Accordingly, “single incidents should
       not be viewed in isolation because it is the cumulative effect of all offensive behavior
       that creates the work environment.”


                                                 20
Waffle House, 313 S.W.3d at 806 (internal citations omitted) (alterations in original).

               Unlike constructive discharge, a hostile work environment must be both objectively

and subjectively offensive. City of Houston v. Fletcher, 166 S.W.3d 479, 489 (Tex. App.—Eastland

2005, pet. denied). In determining whether an environment is sufficiently hostile or abusive, courts

consider the totality of the circumstances, including (1) frequency of the conduct; (2) severity of the

conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive

utterance; and (4) whether the conduct unreasonably interferes with the employee’s work

performance. Id. A hostile-environment claim is designed to address conduct that is so severe or

pervasive that it destroys an employee’s opportunity to succeed in the workplace. Id. The law’s

overall goal of equality is not served if a claim can be maintained solely based on conduct that

wounds or offends but does not hinder an employee’s performance. Id.

               In Suders, the United States Supreme Court explained that when an employee claims

to have been constructively discharged due to an abusive work environment, the constructive-

discharge claim “entails something more” than is required to establish the existence of a hostile work

environment. 542 U.S. at 147. More specifically, the Court stated, “A plaintiff who advances such

a compound claim must show working conditions so intolerable that a reasonable person would have

felt compelled to resign.” Id.; see also Waffle House, 2011 WL 3795224, at *15-16 (on remand,

court of appeals relied on Suders for proposition that constructive-discharge claim entails something

more than what is required to establish hostile-work-environment claim). The Fifth Circuit has

explained that this means that, “[t]o prove constructive discharge, the plaintiff must demonstrate a

greater severity or pervasiveness of harassment than the minimum required to prove a hostile


                                                  21
working environment.” Landgraf v. USI Film Prods., 968 F.2d 427 (5th Cir. 1992), aff’d on other

grounds, 511 U.S. 244 (1994) (severe sexual harassment uncontested but constructive discharge not

conclusively established because there was some evidence of prompt remedial action and that

plaintiff quit because of coworkers rather than sexual harassment).

               In arguing that evidence of a hostile work environment is sufficient to raise a

fact issue on constructive discharge, Gardner’s counsel generally referenced three cases as

equating hostile work environment and constructive discharge—City of Fort Worth v. DeOreo,

114 S.W.3d 664 (Tex. App.—Fort Worth 2003, no pet.), Brown v. Montgomery Cty. Hosp. Dist.,

929 S.W.2d 577, 582 (Tex. App.—Beaumont 1996), rev’d, 929 S.W.2d 501 (Tex. 1998), and the

lower court’s opinion on remand in Waffle House, 2011 WL 3795224 at *15-16. Although we

question whether any of these cases can be read in the manner Gardner suggests, we conclude that

Gardner’s claim fails as a matter of law even under the standard he proposes.

               Whether a reasonable employee would feel compelled to resign depends on the facts

of each case, but a number of factors have been identified as bearing on this inquiry. Those factors

include: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment

to menial or degrading work; (5) badgering, harassment, or humiliation by the employer calculated

to encourage the employee’s resignation; and (6) offers of early retirement that would make the

employee worse off whether the offers were accepted or not. See, e.g., Aryain v. Wal-Mart Stores

Tex. LP, 534 F.3d 473, 481-82 (5th Cir. 2008). In addition, evidence that an employee was forced to

choose between resigning or being fired may be sufficient to raise a fact issue regarding constructive

discharge. Brown, 929 S.W.2d at 582; see also Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 321 (5th




                                                  22
Cir. 1997) (employer told plaintiff that he would not be retained, would be placed on indefinite

unpaid leave, and needed to find another job).

                Gardner also cites an employer’s failure to inform the employee about the results of

a harassment investigation as being another factor supporting a claim of constructive discharge. In

support of this factor, Gardner cites Dillard Dept. Stores, Inc. v. Gonzales, 72 S.W.3d 398 (Tex.

App.—El Paso 2002, pet. denied), in which the court held that a jury could reasonably have

concluded that an employee who complained about sexual harassment, was denied a requested

transfer from the alleged supervisor’s department, and was never informed of the results of any

investigation was constructively discharged because he “felt he had no alternative but to ‘remain in

the department, endure [the harrasser’s] conduct, and accept whatever happens in order to keep [his]

job.’” Id. at 410 (second alteration in original). We do not read Dillard as establishing evidence of

failure to inform as independently sufficient to raise a fact issue regarding constructive discharge;

however, we agree that failure to inform may be considered along with other alleged circumstances

in determining whether there is some evidence of an objectively intolerable work environment.

                In the present case, there is no evidence of demotion, a change in job responsibility,

or that Gardner was given a Hobson’s choice between termination and resignation. There is likewise

no allegation of a reduction in salary or benefits; indeed, the uncontroverted evidence establishes that

Gardner’s salary was actually increased after he says Elliott learned of his sexual orientation and that

the increase was based on Elliott’s recommendation. Rather, Gardner’s argument is principally that

he was badgered, harassed, or humiliated by Elliott based on his sexual orientation and in a manner

calculated to encourage his resignation. He also complains that he was not informed about the




                                                  23
results of any investigation into his August 2008 complaint regarding being written up for excessive

idle time and absences from his desk.15

                Although Gardner testified that, in general, Elliott subjected him to more excessive

scrutiny than other employees, regularly harassed him, and other employees agreed he was being

harassed or “persecuted,” such conclusory statements and allegations are insufficient to raise a fact

issue: “If a witness provides a conclusion but does not provide underlying facts to support the

conclusion, then the witness’s testimony is conclusory and legally insufficient to support a

judgment.”16 Ortega v. Cach, LLC, 396 S.W.3d 622, 637 (Tex. App.—-Houston [14th Dist.] 2013,

no pet.); see also Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam) (holding

affiant’s statement that certain conduct constituted intentional or willful misconduct by defendant

was conclusory because it stated conclusion and did not provide supporting facts). Therefore, in

evaluating whether there is some evidence that Gardner’s work environment was objectively

intolerable, we consider only the instances of harassing conduct and micromanagement that Gardner

has identified factually.


       15
          The uncontroverted evidence shows that after Gardner complained to the ombudsman in
June 2008, she referred him to Elliott’s supervisor, Chip Arnold, who met with Gardner and
addressed his complaints in person. Gardner’s next complaint was via an email sent to Elliott,
Arnold, and possibly the ombudsman in August 2008 following a written warning that he considered
to be unwarranted. He did not reference his sexual orientation or complain of actions he believed
to be based on his sexual orientation. Gardner contends that he received no response to that
complaint, and the record does not show what, if any, action was taken with regard to that complaint.
Gardner testified that his final complaint to the ombudsman was made after he had submitted his
resignation and, thus, any failure to inform him regarding the results of an investigation of that
complaint cannot reasonably be considered a factor in his constructive-discharge claim.
       16
          Gardner also testified that he had applied for other positions in the AG’s Office outside
the Tyler Call Center but was not selected for any of those jobs. However, there is no evidence
concerning these positions, Gardner’s qualifications for the positions, or the people who were
awarded the positions over Gardner.

                                                 24
               Viewing the disputed and uncontroverted evidence in Gardner’s favor, as we must,

the specific incidents of harassment and micromanagement identified by Gardner are: (1) Elliott’s

derogatory reference in October 2007 to Gardner’s geisha girl costume; (2) Elliott’s failure in

October 2007 to distribute a photograph of Gardner in costume; (3) Elliott’s asking Gardner in

June 2008 how his father felt about his lifestyle; (4) Elliott’s questioning Gardner sometime prior

to July 2008 about being unavailable to take calls on an occasion when Gardner spent unscheduled,

additional time on a restroom break due to a stomach illness; (5) Elliott’s questioning Gardner

sometime prior to July 2008 about not being ready to take calls at the start of a work shift when

Gardner had crackers in his mouth; (6) Elliott’s questioning Gardner on another occasion when he

was inputting contacts into a new cell phone while answering calls; (7) Gardner’s having been

disciplined in August 2008 for excessive idle time and absences from his desk even though he was

still meeting his individual call quota and other employees also engaged in idle conversation; (8) the

failure of Elliott, Arnold, or the ombudsman to investigate or respond to Gardner’s complaint in

August 2008 following his being disciplined for excessive idle time and absences from his desk;

(9) Gardner’s having 17 calls monitored and graded in two days in August 2008 without explanation

and telling an employee to comb through them looking for errors; (10) Elliott’s presumed

disapproval in October 2008 of Gardner’s ballerina costume; (11) Gardner’s having 21 calls

monitored in two days during the January 2009 initiative; (12) Elliott’s telling Gardner during a

disciplinary counseling session in January 2009 not to be so “out” (which Gardner took as a

reference to his sexual orientation); and (13) Elliott’s telling Gardner every time they had a meeting

during his two-year tenure at the Tyler Call Center that Elliott did not know if Gardner would still

have a job because that would be up to other people at the AG’s Office in Austin. Although Gardner


                                                 25
concedes that he was unaware of any effort to terminate his employment in January 2009, he states

that this is further evidence that the foregoing actions were taken with an intent to cause him

to resign.

               Considering the foregoing circumstances cumulatively, we hold that there is no more

than a scintilla of evidence that Gardner was constructively discharged. Considering the frequency,

severity, and nature of Gardner’s complaints, there is no evidence that the Tyler Call Center was

permeated with discriminatory intimidation, ridicule, and insult. There is likewise no evidence of

conduct that was physically threatening or humiliating, and no evidence that Gardner’s work

performance was impeded in any manner. In short, there is legally insufficient evidence of work

conditions so intolerable that a reasonable person in Gardner’s position would have felt compelled

to resign. Indeed, Gardner’s allegations are less severe and pervasive than the circumstances in

other cases in which courts have found insufficient evidence of a hostile work environment, much

less a constructive discharge. Compare, e.g., Staller v. Service Corp. Int’l, No. 04-06-00212-CV,

2006 WL 3018039, at *4-5 (Tex. App.—San Antonio Oct. 25, 2006, no pet.) (mem. op.) (affirming

summary judgment in sexual-harassment case where plaintiff’s supervisors frequently made sexually

inappropriate remarks, commented about her breasts, referred to male employees as plaintiff’s lovers,

stood over her and peered down her shirt, forbade her from dating other employees, repeatedly

indicated desire to date her, and once came toward her in menacing fashion as if to touch her

sexually), Garcia v. Schwab, 967 S.W.2d 883, 885, 887 (Tex. App.—Corpus Christi 1998, no pet.)

(affirming summary judgment for employer despite evidence that supervisor stared and commented

on plaintiff’s breasts, touched his genitals in her presence, discussed sexual matters with her,

remarked on her and other women’s appearances, insulted and yelled at her, and made repeated


                                                 26
sexual references with alleged intent to arouse her), with Gonzales, 72 S.W.3d 407-08 (holding

evidence sufficient to sustain jury’s verdict of hostile work environment and constructive discharge

where supervisor hugged plaintiff in a manner that pressed supervisor’s penis against him on several

occasions, poked employee in buttocks with shoe box, and stroked, rubbed and patted employee in

sensual way on several occasions). We overrule Gardner’s fourth appellate issue.

               Our disposition of appellate issue four moots the issues raised in the plea to the

jurisdiction regarding the availability of an injunction awarding money damages against the appellees

and the propriety of injunctive relief against Elliott in his individual capacity. Accordingly, we do

not reach the remainder of Gardner’s issues on appeal.


                                         CONCLUSION

               We hold that (1) the trial court did not abuse its discretion in declining to detail the

grounds for granting the State’s motion for summary judgment and (2) summary judgment was

proper on the ground that there is no evidence that Gardner was constructively discharged. For these

reasons, we affirm the trial court’s judgment.



                                              _____________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: July 18, 2013




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