OPINION
Appellant, Sherrylene Garcia, appeals the trial court’s grants of summary judgment in favor of appellees, Shell Oil Company and Gustavo Penilla d/b/a Quality Thermo Services. In one issue, Garcia argues the trial court erred in granting summary judgment (1) on her sexual harassment claims on the basis of res judi-cata and (2) on her intentional infliction of emotional distress claims on the basis that they are precluded by Title VII of the Civil *772 Rights Act of 1964 and Chapter 21 of the Texas Labor Code.
We affirm in part and reverse and remand in part.
Background
Some time in 2007, Garcia began working for Penilla’s sole-proprietorship business, Quality Thermo Services. At the time, Quality Thermo Services was performing contract work at one of Shell’s buildings. Garcia alleged that she was sexually harassed by Penilla and Emerar-do Salinas, an employee of Shell.
Garcia filed charges of sexual harassment with the Equal Employment Opportunity Commission on October 8, 2007 and subsequently received a right-to-sue letter. She filed suit against Shell and Penilla in federal court on May 30, 2008 (“the federal suit”). Garcia asserted against both Shell and Penilla claims of (1) sexual harassment under Title VII of the federal Civil Rights Act of 1964 (“Title VII”) and (2) intentional infliction of emotional distress under Texas common law.
Shell and Penilla moved for summary judgment on each of Garcia’s claims in the federal suit. Shell argued summary judgment should be granted against Garcia on her Title VII sexual harassment claim against it because it did not have an employer-employee relationship with her. Shell argued that, because it was not her employer, Garcia could not recover damages from it under Title VII. The magistrate judge agreed and recommended that the federal district court grant summary judgment on Garcia’s Title VII sexual harassment claims against Shell. 1
Penilla argued summary judgment should be granted against Garcia on her sexual harassment claim against him because he was not an employer as it is defined under Title VII because he did not have the requisite number of employees. The magistrate judge agreed and recommended that the federal district court grant summary judgment on Garcia’s sexual harassment claims against Penilla. 2
For Garcia’s state claims of intentional infliction of emotional distress against Shell and Penilla, the magistrate judge recommended that the federal district court decline to exercise supplemental jurisdiction over the claims and dismiss the claims without prejudice. 3
The district court adopted the recommendations of the magistrate judge. In its final judgment, the district court rendered judgment in favor of Shell and Pen-illa on Garcia’s sexual harassment claims and dismissed without prejudice Garcia’s intentional infliction of emotional distress claims.
A few days later, Garcia filed suit in a Harris County district court (“the Texas suit”). Garcia’s petition in the Texas suit is largely identical to her petition in the federal suit. Specifically, she asserts the same causes of action she had asserted in her federal suit — claims of sexual harassment under Title VII of the federal Civil Rights Act of 1964 4 and intentional inflic *773 tion of emotional distress under Texas common law — against both defendants.
Shell moved for summary judgment on Garcia’s claims against it. Shell argued that Garcia’s Title VII sexual harassment claims were barred by res judicata and that her intentional infliction of emotional distress claim was precluded by Title VII and Chapter 21 of the Texas Labor Code. The trial court granted Shell’s motion for summary judgment on both claims Garcia asserted against it.
Penilla subsequently filed a motion for summary judgment on the same grounds asserted by Shell, namely that Garcia’s Title VII claim against him was barred by res judicata and her intentional infliction of emotional distress claim was precluded by Title VII and Chapter 21 of the Texas Labor Code. The trial court granted Pen-ilia’s motion for summary judgment, disposing of all parties and claims.
Standard of Review
The summary-judgment movant must conclusively establish its right to judgment as a matter of law.
See MMP, Ltd. v. Jones,
To prevail on a “traditional” summary-judgment motion, asserted under Rule 166a(c), a movant must prove that there is no genuine issue regarding any material fact and that it is entitled to judgment as a matter of law.
See
Tex.R. Civ. P. 166a(c);
Little v. Tex. Dep’t of Criminal Justice,
It is an affirmative defense to assert that a claim is barred by res judica-ta. Tex.R. Civ. P. 94. Accordingly, Shell and Penilla bore the burden of establishing as a matter of law each of the elements of res judicata.
Travelers Ins. Co. v. Joa-chim,
Garcia’s Title VII Sexual Harassment Claims
Shell and Penilla asserted in their motions for summary judgment that Garcia’s Title VII sexual harassment claims brought against them in the Texas suit were barred by res judicata because judg *774 ment was rendered on these claims in the federal suit. Garcia argues on appeal that her Title VII claims are not barred by res judicata because the claims brought in federal district court were disposed of on jurisdictional grounds.
Because the first lawsuit at issue in this case was decided in federal court, federal law controls the determination of whether res judicata bars the present state court proceeding.
San Antonio Indep. Sch. Dist. v. McKinney,
The summary judgment evidence unequivocally establishes that the parties to the federal suit are identical to the parties to the Texas suit. It equally establishes that Garcia brought identical Title VII claims against Shell and Penilla. The central issue on appeal is whether the federal district court’s determination that neither Shell nor Penilla were employers under Title VII — because Shell did not have an employer-employee relationship with Garcia and because Penilla did not have the requisite number of employees — was a jurisdictional determination or a ruling on the merits of Garcia’s sexual harassment claims.
As an initial matter, we note that, contrary to Garcia’s assertions at trial and on appeal, the federal district court did not “dismiss[] the ease because the court determined that it had no jurisdiction to adjudicate the case.” Instead, the final judgment explicitly stated that it rendered judgment for Shell and Penilla on Garcia’s sexual harassment claims. Nevertheless, if the determination that Shell and Penilla were not employers under Title VII was a jurisdictional issue, then any judgment on the merits rendered by the trial court would be void.
See Tex. Constr. Co. v. U.S.,
Title VII concerns discrimination based on sex in the workplace environment. 42 U.S.C. § 2000e-2(a) (2008). As it applies to Garcia, Title VII makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s ... sex.” Id. § 2000e-2(a)(1). An employer is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.... ” 42 U.S.C. § 2000e(b) (2006).
Determining whether a defendant is an employer under Title VII involves a two-step process.
Deal v. State
*775
Farm Cnty. Mut. Ins. Co. of Tex.,
Penilla argued in the federal suit that he had fewer than 15 employees and, accordingly, was not an employer as defined by the statute. 6 Shell argued in the federal suit that it was not an employer under Title VII because it did not have an employer-employee relationship with Garcia.
In 2006, the United States Supreme Court held that the employee-numerosity requirement “is an element of a plaintiffs claim for relief, not a jurisdictional issue.”
Arbaugh v. Y & H Corp.,
The judgment in the federal suit was rendered by a court of competent jurisdiction and Garcia’s claims of sexual harassment against Shell and Penilla were concluded by a final judgment on the merits.
See Test Masters,
Garcia’s Intentional Infliction of Emotional Distress Claims
The federal district court dismissed without prejudice Garcia’s claims of intentional infliction of emotional distress. Shell and Penilla moved for summary judgment on these claims in the Texas suit arguing that intentional infliction of emotional distress is a gap-filler claim and Garcia’s claims were precluded by Title VII and Chapter 21 of the Texas Labor Code. The trial court agreed and granted summary judgment on Garcia’s intentional infliction of emotional distress claims against Shell and Penilla.
Intentional infliction of emotional distress is a gap-filler tort: “judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.”
Hoffmann-La Roche Inc. v. Zeltwanger,
The Texas employment discrimination statutes were modeled after Title VII with the purpose of executing the policies set forth in Title VII.
Hoffman-LaRoche,
The Texas Supreme Court recently held that a statutory sexual harassment claim precludes all common-law causes of action for the same injury.
Waffle House, Inc. v. Williams,
Both Shell and Penilla obtained summary judgment on Garcia’s Title VII claims, however, by arguing that they were not employers as defined by Title VII. The issue we must resolve, then, becomes whether Title VII and the Texas employment discrimination statutes were meant to preclude common-law causes of action for non-employers. We begin by reviewing the scope and purpose of Title VII and the Texas employment discrimination statutes.
A. Purpose and Scope of Title VII and Chapter 21 of the Texas Labor Code
Not all claims of sexual harassment are actionable under the federal or state statutory schemes.
Twigland Fashions, Ltd. v. Miller,
Even for employers, Congress placed limitations on who faces liability. An employer who has fewer than fifteen employees does not face liability under Title VII.
See
42 U.S.C. § 2000e(b) (excluding employers with fewer than 15 employees from definition of employer under act);
see also
Tex. Lab.Code Ann. § 21.002(8) (placing same limitations on definition of employer). The purpose of the employee-numerosity requirement was “[t]o spare very small businesses from Title VII liability.”
See Arbaugh,
In determining that the sexual harassment statutes precluded state common-law claims, the Texas Supreme Court noted that the state statutes have caps on compensatory and punitive damages available to a plaintiff that the common law claims did not have.
Waffle House,
With this framework in mind, we turn to each of the defendants.
B. Shell
Garcia brought a claim of intentional infliction of emotional distress claim against Shell for the harassment she asserts was committed by its employee, Salinas. Shell established in its motion for summary judgment in the federal suit that it was not Garcia’s employer due to the fact that it did not have an employer-employee relationship with Garcia. A claim of sexual harassment is actionable under Title VII only against the plaintiffs employer.
Twigland Fashions,
C. Penilla
Penilla, in contrast, was Garcia’s employer. The claims of sexual harassment alleged by Garcia, if proven, would support a finding that the sexual harassment constructively altered the terms or conditions of her employment. See id. (holding sexual harassment is actionable under Title VII when it constructively alters employee’s terms or conditions of employment). Penilla obtained summary judgment because he did not have the requisite number of employees to face liability under the statutory scheme.
The purpose of the employee-nu-merosity requirement was to spare small businesses from Title VII liability and the costs of litigation.
Arbaugh,
We do not need to resolve this issue, however, on this appeal. It is undisputed by the parties that Penilla’s business, Quality Thermo Services, is a sole proprietorship. A sole proprietorship does not have a separate legal existence distinct from the operator of the business.
Ideal Lease Serv., Inc. v. Amoco Prod. Co., Inc.,
We sustain Garcia’s issue as it relates to her intentional infliction of emotional distress claims against Shell and Penilla. We overrule Garcia’s issue as it relates to her Title VII claims against Shell and Penilla.
Conclusion
We affirm the portion of the judgment of the trial court that grants summary judgment in favor of Shell and Penilla on Garcia’s claims of sexual harassment. We reverse the judgment of the trial court in all other respects and remand the cause for further proceedings.
Notes
.
See Garcia
v.
Shell Oil Co.,
No. H-08-1734,
. Id. at *6.
. Id.
. At trial and on appeal, Shell asserts that Garcia's claim for sexual harassment in her Texas suit was brought under chapter 21 of the Texas Labor Code. We disagree. In her Texas suit petition, Garcia cites repeatedly to Title VII and federal case law concerning Title VII. She repeatedly mentions the federal Civil Right Act of 1964. She even quotes the pertinent language on sexual harassment from the federal statute. In contrast, Garcia makes no mention of or citation to chapter 21
*773
of the Texas Labor Code anywhere in her petition. Accordingly, we treat her claim as a Title VII claim.
See Yellow Freight Sys., Inc. v. Donnelly,
.
See Bair v. Resolution Trust Corp.,
. It is undisputed by the parties that Penilla's business, Quality Thermo Services, is a sole proprietorship. A sole proprietorship does not have a separate legal existence distinct from the operator of the business.
Ideal Lease Serv., Inc. v. Amoco Prod. Co., Inc.,