San Antonio Water System v. Debra Nicholas, 461 S.W.3d 131

Background

Debra Nicholas, former SAWS chief of staff, testified she and CEO Chardavoyne were told that VP Greg Flores repeatedly invited two female employees to lunch and that one felt uncomfortable and might complain.
Nicholas and Chardavoyne allegedly met Flores and warned him to stop; Flores denied the meeting occurred (though later sent suggestive emails to one employee, which Nicholas did not know about at the time).
After Chardavoyne resigned, Nicholas was reassigned to report to Flores; her position was eliminated in 2009 and she was not interviewed for other jobs.
Nicholas sued SAWS under the Texas Commission on Human Rights Act (TCHRA), claiming retaliation for opposing sexual harassment; a jury awarded her nearly $1 million.
SAWS appealed, arguing Nicholas did not have a good-faith, objectively reasonable belief that actionable sexual harassment occurred, so she did not engage in protected activity and the trial court lacked jurisdiction (so sovereign immunity was not waived).
The Texas Supreme Court considered whether a handful of lunch invitations (the only conduct Nicholas opposed) could reasonably be viewed as actionable sexual harassment under TCHRA/Title VII standards.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nicholas engaged in protected activity by opposing sexual harassment	Nicholas contends her counseling/reprimand of Flores opposed a discriminatory practice (sexual harassment) and thus was protected	SAWS argues no reasonable person could have believed the lunch invitations amounted to actionable sexual harassment, so no protected activity occurred	Held for SAWS: no protected activity—lunch invitations were not objectively actionable sexual harassment
Whether trial court had jurisdiction given sovereign immunity waiver under TCHRA	Nicholas says pleading and jury verdict established TCHRA claim and jurisdiction	SAWS says elements of TCHRA claim are jurisdictional; failure to prove objective reasonable belief means no waiver of immunity	Held: Elements are jurisdictional; because Nicholas failed to show objective reasonable belief, immunity not waived and court lacked jurisdiction
Whether subjective belief evidence sufficed to create objective reasonable belief	Nicholas and some managers testified they thought conduct might be harassing or risky	SAWS points to contemporaneous evidence showing conduct was isolated/unwelcome but not severe or pervasive; some witnesses said it was merely awkward	Held: Subjective precautions do not meet objective standard; isolated lunch invitations insufficient to support objectively reasonable belief
Whether jury instruction/ordinary meaning of "sexual harassment" controls review	Nicholas argues jury was entitled to ordinary meaning and charge supported verdict	SAWS argues legal standards govern review and charge error cannot confer jurisdiction	Held: Court did not rely on charge wording; charge error cannot create jurisdiction where statutory waiver is lacking

Key Cases Cited

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (sovereign immunity and jurisdictional limits)
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012) (legislative waiver of immunity applies only where plaintiff pleads facts stating a TCHRA claim)
State v. Lueck, 290 S.W.3d 876 (Tex. 2009) (elements of statutory claims can be jurisdictional)
Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) (Title VII/TCHRA sexual-harassment standards; harassment must affect terms, conditions, or privileges of employment)
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (single/isolated incidents typically not actionable sexual harassment)
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (severity and pervasiveness standard for hostile work environment)
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (factors for determining hostile work environment)
Cox & Smith Inc. v. Cook, 974 S.W.2d 217 (Tex. App.—San Antonio 1998) (examples of conduct courts found not reasonably actionable under TCHRA)