David Willborn v. Formosa Plastics Corp. of Texas ( 2005 )

                                              NUMBER 13-04-007-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

DAVID WILLBORN,                                                                          Appellant,

                                                             v.

FORMOSA PLASTICS CORPORATION

OF TEXAS,                                                                                         Appellee.

                              On appeal from the 24th District Court

                                       of Calhoun County, Texas.

                              MEMORANDUM OPINION^[1]

           Before Chief Justice Valdez and Justices Castillo and Garza

                           Memorandum Opinion by Justice Castillo

This is a sexual harassment case.  Presented with competing motions for partial summary judgment, the trial court granted appellee Formosa Plastics Corporation of Texas' motion and denied appellant David Willborn's motion.  By two issues, Willborn appeals the trial court's order (1) granting summary judgment in favor of appellee Formosa, and (2) denying Willborn's motion for partial summary judgment.^[2]  We affirm.

I. Relevant Facts

On March 25, 2003, Willborn filed his second amended petition.  Willborn alleged that, dating back to 1996, his supervisors and co-workers subjected him to a hostile work environment and that his supervisors were both aware of the problem and failed to correct it.  Willborn believed that the harassment was based on the supervisors' and co-workers' perception that he did not meet the "male stereotype." On June 1, 2003, Formosa filed its special exceptions to Willborn's second amended petition, excepting to Willborn's petition as it failed to state a cause of action under the Texas Commission on Human Rights Act, Tex. Lab. Code Ann.' 21.001-.306 (Vernon 1996 & Supp. 2004-05) ("TCHRA") or under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. ' 2000e et seq. ("Title VII").  On September 24, 2003, the trial court sustained Formosa's special exceptions and ordered that Willborn amend his pleading by October 6, 2003.  On August 22, 2003, Willborn filed his third amended petition, in response to Formosa's special exceptions and as ordered, still relying on the TCHRA and Title VII.  On September 22, 2003, Willborn filed his motion for partial summary judgment asking the trial court to find as a matter of law that same-sex discrimination based on gender stereotype is actionable under the TCHRA or Title VII as amended for gender-based harassment and a sexually hostile work environment. Formosa responded that Willborn sought a conclusion of law or an advisory opinion rather than a partial summary judgment.  On October 23, 2003, Formosa filed its own motion for partial summary judgment asking the trial court to dismiss Willborn's employment discrimination claim on grounds that his live pleading failed to state a cause of action for sexual harassment and sexually hostile work environment under the TCHRA.  In response, Willborn asserted that "discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII and the TCHRA."  The trial court entered an order denying Willborn's motion and granting Formosa's motion, holding that Willborn had failed to state a cause of action under the TCHRA or Title VII.  It is from this order, after severance of Willborn's claims for (1) intentional infliction of emotional distress, (2) negligent supervision and control, and (3) vicarious liability for purposes of finality, that Willborn appeals.

II. Jurisdiction

Before we reach the merits of this case, we must first determine whether we have jurisdiction over this appeal.  Ortega v. City Nat<l Bank, 97 S.W.3d 765, 771 (Tex. App.BCorpus Christi 2003, no pet.) (opin. on reh'g) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)).  Because the question of jurisdiction is a legal question, we follow the de novo standard of review.  Id.  (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)). Jurisdiction of a court is never presumed and, if the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be dismissed.  El‑Kareh v. Tex. Alcoholic Beverage Comm'n, 874 S.W.2d 192, 194 (Tex. App.BHouston [14th Dist.] 1994, no writ).  As appeals are only allowed from final orders or judgments, we must first consider whether an order purporting to grant a summary judgment can be final and appealable when one of the plaintiff's causes of actions was not addressed by the defendant in the motion for summary judgment. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

A.  Willborn's Title VII and TCHRA Claims

Willborn asserted causes of action for (1) gender discrimination, (2) sexual harassment, and (3) sexually hostile work environment under both the TCHRA and Title VII, as well as for (1) intentional infliction of emotional distress, (2) negligent supervision and control, and (3) vicarious liability/respondent superior.^[3]  In its motion, Formosa sought summary judgment as to Willborn's claims under the TCHRA for (1) gender based sexual harassment and (2) sexually hostile work environment, arguing that Willborn's claim for same-sex harassment for his failure to meet the male stereotype was not a cognizable cause of action under Texas Labor Code Section 21.051.  See Tex. Lab. Code Ann. ' 21.051 (Vernon 1996).  Formosa's motion for summary judgment did not request summary judgment as to any of Willborn's federal Title VII claims.

B.  Sexual Harassment and Sexually Hostile Work Environment Claims

In its order, the trial court found that Willborn "[had] not plead [sic] a cognizable cause of action under Title VII of the Civil Rights Act of 1964 and the Texas Commission on Human Rights Act for gender based sexual harassment and a sexually hostile work environment." The court ordered that Willborn take nothing on his claim against Formosa for sexual harassment and a sexually hostile work environment, and that the claim be "dismissed in all things."  As such, the partial summary judgment order grants more relief than Formosa requested.

An express adjudication of all parties and claims in a case is not interlocutory merely because the record does not afford a legal basis for the adjudication.  Lehmann, 39 S.W.3d at 206.  To determine whether an order disposes of all pending claims and parties, it may be necessary for the appellate court to look to the record in the case.  Id. at 205‑06.  In this case, the trial court's summary judgment stated that the claim should be "dismissed in all things."  After reviewing the record in this case and for the reasons expressed below, we conclude that this judgment should be treated as final for purposes of appeal.  Id. at 206.

The judgment of the trial court shall conform to the pleadings. See Tex. R. Civ. P. 301.  It is well established that a summary judgment can only be granted on the grounds addressed in the motion for summary judgment.  See Tex. R. Civ. P. 166a(c); Roof Sys., Inc. v. Johns Manville Corp., 130 S.W.3d 430, 436 (Tex. App.BHouston [14th Dist.] 2004, no pet.).  A judgment granting more relief than a party is entitled to is subject to reversal, but it is not, for that reason alone, interlocutory.  Lehmann, 39 S.W.3d at 200 (citing Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274 (Tex. 1995)).  In those circumstances, the order must be appealed and reversed. Lehmann, 39 S.W.3d at 206. As the trial court purported to rule on all claims in the plaintiff's fourth amended petition, we find that the summary judgment order was final.  Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002); see also Lehmann, 39 S.W.3d at 200.  In his appeal, Willborn preserves no error relating to the trial court's grant of more relief than requested in its summary judgment. Therefore, we conclude that the error is waived. 

Willborn's first issue presented states that the trial court erred in holding that he "failed to state a cognizable cause of action under the Texas Commission on Human Rights Act or Title VII of the Civil Rights Act of 1964, as amended, for gender based harassment and a sexually hostile work environment."  As we conclude that the judgment on Formosa's partial motion for summary judgment is final, that Willborn waived error as to the grant of more relief than sought in the summary judgment, and that Willborn has appealed the judgment as it relates to sexual harassment and sexually hostile work environment under both federal and state law, both issues are properly before us on appeal. 

C.  Sexual Discrimination Claims

In his live pleading, Willborn sought to plead a cause of action for gender discrimination.  Formosa's motion for summary judgment addressed the gender discrimination cause of action, but the trial court's summary judgment did not. No ruling was ever made on Willborn's claim of gender discrimination.  Willborn failed to  include his cause of action for gender discrimination as an issue on appeal and the record reveals that Willborn did not sever that claim from the rest of his causes of action.  We conclude that because the trial court did not address gender discrimination in its summary judgment order, and Willborn failed to address the cause of action on appeal, it is abandoned.

D.  Willborn's Remaining Claims

An order was filed by agreement of the parties to sever Willborn's claims for (1) intentional infliction of emotional distress, (2) negligent supervision and control, and (3) vicarious liability/respondeat superior from Willborn's claims against Formosa brought under the TCHRA and Title VII.

E.  Disposition

The trial court's order for partial summary judgment conclusively disposed of Willborn's claims based on sexual harassment and a sexually hostile work environment under the TCHRA and Title VII.  The later severance of Willborn's remaining claims caused the partial summary judgment to become final and appealable.  See Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). We conclude that the trial court's disposition as to the claims enumerated in its order is final and that we have jurisdiction over the issues Willborn appeals.  Ortega, 97 S.W.3d at 771.  Accordingly, we will now consider whether the trial court erred in granting summary judgment against Willborn on his state and federal employment discrimination claims.

III. The Court's Order on the Motions for Summary Judgment

Willborn appeals both the trial court's decision to deny his own motion for partial summary judgment and the court's decision to grant Formosa's motion for partial summary judgment.  Formosa responds that the trial court properly granted summary judgment.

A. Standard of Review

The propriety of a summary judgment is a question of law. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).  We therefore review the decision de novo.  See id.  The standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no‑evidence or traditional grounds.  See Tex. R. Civ. P. 166a(c), (i); see also Ortega, 97 S.W.3d at 771.  A no-evidence summary-judgment motion asserts there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial.  Tex. R. Civ. P. 166a(i).  A no‑evidence motion for summary judgment is properly granted only if the non‑movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to the challenged element of the claims.  See id.; Mulvey v. Mobil Producing Tex. & N.M. Inc., 147 S.W.3d 594, 605 (Tex. App.BCorpus Christi 2004, pet. denied) (citing AMS Constr. Co. v. Warm Springs Rehab. Found., 94 S.W.3d 152, 159 (Tex. App.BCorpus Christi 2002, no pet.)).

The function of a summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial.  Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.BCorpus Christi 2003, no pet.).  In both traditional and no-evidence summary-judgment motions, we review the evidence "in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences."  See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.BCorpus Christi 2003, no pet.).  The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law.  Hoyt, 105 S.W.3d at 345.  We affirm a trial court's ruling on a summary-judgment motion if any of the theories advanced in the motion is meritorious.  State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App.BCorpus Christi 1998, no pet.).  We review a summary judgment de novo to determine whether a party established its right to prevail as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548‑49 (Tex. 1985); Ortega, 97 S.W.3d at 771.  When, as in the present case, both sides move for summary judgment and the trial court grants one motion but denies the other, a reviewing court should review both sides' summary judgment evidence, determine all questions presented, and render the judgment that the trial court should have rendered.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

B. The Trial Court's Decision to Deny Willborn's Summary-Judgment Motion

In his second issue, Willborn asserts that, by his motion, he sought a "ruling on a question of law regarding a "real and current controvers[y],' not an 'abstract, hypothetical, or remote dispute.'"  Willborn's motion for partial summary judgment asked the trial court to find as a matter of law that same-sex discrimination based on gender stereotype is actionable under the TCHRA and Title VII, as amended.  Willborn asserted that matters of statutory construction are questions of law for the court to decide rather than issues of fact, and thus the trial court could properly decide whether the alleged discrimination was actionable under the TCHRA and Title VII. Formosa countered that Willborn sought a "finding" that his cause of action is cognizable under the TCHRA and Title VII, but findings are not the rendition of a judgment, even a partial summary judgment. Formosa further stated that a judgment is a judicial act by which the court settles and declares the decision of the law upon the matter at issue.  We agree.

Rule 166a of the Texas Rules of Civil Procedure addresses summary judgments.  See Tex. R. Civ. P. 166a.  Nowhere does the rule allow for the type of disposition that Willborn seeks. "A partial summary judgment is a decision on the merits unless set aside by the trial court."  Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 1995) (per curiam).  By his summary-judgment motion, Willborn seeks a pronouncement that his reliance upon the TCHRA and Title VII as statutory bases for his claims is not erroneous, an effort that is the substance of a declaratory judgment action.^[4]  When, as here, a party has mistakenly designated a pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated.  See Tex. R. Civ. P. 71.  The problem with construing Willborn's motion for partial summary judgment as a request for a declaratory judgment is that Willborn did not ask for or allude to a desire for a declaratory judgment anywhere in his pleadings.  A party may not be granted relief in the absence of pleadings to support that relief.  Tex. R. Civ. P. 301; Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). A judgment must be supported by the pleadings and, if not so supported, it is erroneous.  Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex. App.BCorpus Christi 2001, no pet.) (citing Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983)); see also City of Fort Worth v. Gause, 101 S.W.2d 221, 223 (1937).   Because Willborn did not assert a claim for declaratory relief in his live pleading, we conclude that the trial court did not err in denying Willborn's motion for partial summary judgment.  As such, we overrule Willborn's second issue on appeal.

C. The Trial Court's Decision to Grant Formosa's Summary-Judgment Motion

1. Traditional or No-Evidence Motion

Formosa's motion for partial summary judgment states that the live pleading "fails to state a cause of action for gender based sexual harassment and sexually hostile work environment."  Formosa does not indicate whether the motion is one seeking a traditional or a no-evidence partial summary judgment.  A court should determine the standard of proof on a summary judgment motion after considering the substance of the motion, and not categorize the motion strictly by its form or title.  See Tex. R. Civ. P. 71; Rodgers v. Weatherspoon, 141 S.W.3d 342, 344 (Tex. App.BDallas 2004, no pet.).  The motion for summary judgment shall state the specific grounds therefor.  See Tex. R. Civ. P. 166a(c).  If the party is seeking a motion for summary judgment based on no-evidence grounds, "the motion must state the elements as to which there is no evidence."  See Tex. R. Civ. P. 166a(i).  If a summary judgment motion appears to be a mixture of traditional and no‑evidence motions, appellate courts have determined that a motion that is not "specific in alleging a lack of evidence on an essential element" of the claim will not qualify for review as a no‑evidence motion, but can still be reviewed as a traditional motion. Weatherspoon, 141 S.W.3d at 344 (citing Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 168 (Tex. App.BTexarkana 2000, pet. denied)); see also Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n.2 (Tex. App.BHouston [1st Dist.] 1999, no pet.).  The fact that evidence may be attached to a motion that proceeds under subsection 166 (a) or (b) does not foreclose a party from also asserting that there is no evidence with regard to a particular element.  Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).  Similarly, if a motion brought solely under subsection (i) attaches evidence, that evidence should not be considered unless it creates a fact question, but such a motion should not be disregarded or treated as a motion under subsection (a) or (b).  Id. Based on the motion and evidence tendered, we review Formosa's motion as a traditional motion for summary judgment.  See Weatherspoon, 141 S.W.3d at 344.

2. Pleading Deficiency

Special exceptions can be used to challenge the sufficiency of a pleading.  Tex. R. Civ. P. 91; Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); see also Davis v. Gonzales, 931 S.W.2d 15, 18 (Tex. App.BCorpus Christi 1996, writ denied).  If the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading.  Tex. Dep't of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974); see also Gonzales, 931 S.W.2d at 18.  If a party refuses to amend, or the amended pleading fails to state a cause of action, then summary judgment may be granted.  Herring, 513 S.W.2d at 10.  Summary judgment based on a pleading deficiency is proper if a party has had an opportunity by special exception to amend and fails to do so, or files an additional defective pleading.  Herring, 513 S.W.2d at10.  Summary judgment may also be proper if a pleading deficiency is of the type that could not be cured by an amendment.  Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).  In this case, the trial court granted Formosa's special exceptions. Willborn did not timely amend.^[5]

3. The Law

a.  The TCHRA

Willborn's bases for suit included gender discrimination, sexual harassment, and a hostile work environment.  The TCHRA makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of sex.  See Tex. Lab. Code Ann. ' 21.051 (Vernon 1996); see Garcia v. Schwab, 967 S.W.2d. 883, 885 (Tex. App.BCorpus Christi 1998, no pet.).  Texas Labor Code section 21.125 provides a more specific standard of causation than the one identified in 21.051.  See Tex. Lab. Code Ann. ' 21.125 (Vernon Supp. 2004-05); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 475‑76 (Tex. 2001).  Section 21.125 states:

(a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that . . . sex . . . was a motivating factor for an employment practice, even if other factors also motivated the practice . . . .

Tex. Lab. Code Ann. ' 21.125 (Vernon Supp. 2004-05).

The TCHRA is modeled after federal law with the purpose of executing the purposes of Title VII of the Civil Rights Act of 1964. See Tex. Lab. Code Ann. ' 21.001 (Vernon 1996); Schwab, 967 S.W.2d at 885; Soto v. El Paso Natural Gas, 942 S.W.2d 671, 677 (Tex. App.BEl Paso 1997, pet. denied).  One of the purposes behind this Act is the "correlation of state law with federal law in the area of discrimination in employment."  Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991).  When reviewing a case brought under the TCHRA, a court may look to the TCHRA and, when necessary, to the analogous federal provisions in Title VII, see generally Eckert v. Frostex Foods, Inc., 802 S.W.2d 70, 72 (Tex. App.BAustin 1990, no writ), and federal precedent relating to the same, see Coastal Mart, Inc. v. Hernandez, 76 S.W.3d 691, 695 (Tex. App.BCorpus Christi 2002, pet. dism'd ).  See NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999).  Texas courts are obligated to follow higher Texas courts and the United States Supreme Court.  Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993); see also Mohamed v. Exxon Corp., 796 S.W.2d 751, 753‑54 (Tex. App.BHouston [14th Dist.] 1990, writ denied).

b.  Title VII

The United States Supreme Court has identified a two-fold purpose behind Title VII's enactment: (1) eliminating employment discrimination, and (2) allowing the aggrieved party to be made whole for those injuries suffered on account of unlawful employment discrimination.  City of Austin v. Gifford, 824 S.W.2d 735, 739 (Tex. App.BAustin 1992, no writ) (citing Abemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975)). Under the United States Supreme Court's decision in Oncale v. Sundowner Offshore Servs. Inc., Title VII's prohibition of discrimination because of sex protects "men as well as women."  See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998) (citing Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983). In addition, the United States Supreme Court has held that Title VII protects an employee from reverse discrimination, that is, employer discrimination against a member of a historically favored group.  Coastal Mart, Inc., 76 S.W.3d at 695‑96 (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976)). 

4. The Claims

a.  Same-Sex Sexual Harassment

Willborn includes a claim for sexual harassment, which is one form of prohibited employment discrimination.  Hoffmann‑La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Ewald v. Wornick Family Foods, Corp., 878 S.W.2d 653, 658 (Tex. App.BCorpus Christi 1994, writ denied).  Generally, to establish a claim for sexual harassment, a plaintiff must prove (1) the plaintiff belongs to a protected group; (2) the plaintiff was subjected to unwelcome harassment; (3) the harassment was based on sex; and (4) the harassment affected a term, condition, or privilege of the plaintiff's employment. Padilla v. Flying J, Inc., 119 S.W.3d 911, 915 (Tex. App.BDallas 2003, no pet.) (citing Gulf States Toyota, Inc. v. Morgan, 89 S.W.3d 766, 770 (Tex. App.BHouston [1st Dist.] 2002, no pet.)).  Courts have traditionally defined "unwelcome sexual harassment" as "sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome in the sense that it is unsolicited or unincited and is undesirable or offensive to the employee."  Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989). 

Same-sex sexual harassment is likewise actionable under Title VII.  See Oncale, 523 U.S. at 81.  Under Oncale, to prove same-sex sexual harassment, the complaint may: (1) show that the alleged harasser made "explicit or implicit proposals of sexual activity" and provide credible evidence that the harasser was homosexual; (2) demonstrate that the harasser was "motivated by general hostility to the presence of [members of the same sex] in the workplace; or (3) offer direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.  See Oncale, Inc., 523 U.S. at 80-81. "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, 523 U.S. at 81. 

Willborn's petition does not allege facts that satisfy the requirements of a same-sex sexual harassment cause of action. Willborn states that the abuse at issue was based upon the perception that he is effeminate and, therefore, occurred because of sex.  No facts were alleged to show (1) that anyone made either "explicit or implicit proposals of sexual activity" towards Willborn, (2) that the harasser was motivated by general hostility to the presence of other members of the same sex in the workplace, or (3) the alleged harasser's treatment of members of both sexes in a mixed-sex workplace.  See Oncale, 523 U.S. at 80-81.  In addition, Willborn does not direct us to any opinion promulgated by this state's supreme court or the United States Supreme Court which recognizes a cause of action based on alleged "gender stereotype."  We conclude that, as a matter of law, Willborn failed to allege a cause of action for sexual harassment. 

b.  Hostile Work Environment

Willborn further alleges that his supervisors and co-workers subjected him to a hostile work environment, which is a form of sexual harassment.  See Schwab, 967 S.W.2d at 885.  A cause of action for the hostile work environment form of sexual harassment requires proof of the following elements: (1) the plaintiff belongs to a protected group, (2) the plaintiff was subject to unwelcome sexual harassment, (3) the harassment complained of was based upon sex, (4) the harassment complained of affected a "term, condition, or privilege" of employment, and (5) the employer knew or should of known of the harassment and failed to take remedial action.  Schwab, 967 S.W.2d at 885; see also Ewald, 878 S.W.2d at 659; Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir. 1982)).  Once again as we look to the federal counterpart, we note that Title VII is violated when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment.  Oncale, 523 U.S. at 78; Meritor Sav. Bank FSB, 477 U.S. at 64-67.  For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment."  Meritor Sav. Bank, FSB, 477 U.S. at 67. Whether an environment is "hostile" or "abusive" can be determined only by reviewing all the circumstances including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance.  Schwab, 967 S.W.2d at 885‑886 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).  This standard seeks to avoid making all offensive conduct actionable by requiring the conduct to cause tangible physical injury.  See Schwab, 967 S.W.2d at 885.

The first element of a hostile work environment form of sexual harassment claim is that the plaintiff is a member of a protected group.  See Ewald, 878 S.W.2d at 659.  Title VII, and hence the TCHRA, protects men from prohibition of discrimination because of sex.  See Oncale, 523 U.S. at 78.  The second element requires proof that the plaintiff was subject to unwelcome sexual harassment.  See Ewald, 87 S.W.2d at 659.  In this case, Willborn alleged no conduct of the sort that has been held to satisfy this element, namely, sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that is unwelcome.  Wyerick, 887 F.2d at 1274  Considering the record before us and the facts alleged by Willborn, we conclude that Willborn has failed to allege facts showing that he was subjected to a hostile work environment.   

We overrule Willborn's first issue on appeal.

IV.  Conclusion

We affirm the judgment of the trial court.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and

filed this 28th day of July, 2005.

---

^[1] This is a memorandum opinion.  The parties are familiar with the facts.  We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

^[2] Specifically, in his first issue, Willborn asserts that the trial court erred in finding that Willborn failed to state a cognizable cause of action under the Texas on Human Rights Act  or Title VII of the Civil Rights Act of 1964, as amended, for gender based harassment and a sexually hostile work environment because (1) Willborn's pleading gave fair and adequate notice, (2) United States Supreme Court precedent supported his claim, (3) employment decisions cannot be predicated on mere "stereotyped" impressions about the characteristics of males or females, and (4) standards of liability apply to same-sex plaintiffs as they do opposite-sex plaintiffs.  In his second issue, Willborn asserts that the trial court erred in denying his motion for summary judgment, in part, because he did not seek an unauthorized advisory opinion, as Formosa asserted.

^[3] Formosa's motion for partial summary judgment states as grounds, in the first page, that Willborn's third amended petition fails to state a cause of action for (1) gender based sexual harassment and (2) sexually hostile work environment under, specifically, the TCHRA .  Under the heading "Grounds for Summary Judgment and Relief Sought," Formosa states that "[Willborn]'s claim for same-sex harassment of an individual for his failure to meet the male stereotype is not a cognizable cause of action under Texas Labor Code Section 21.051 and consequently [Willborn's] claim against [Formosa] for sexual harassment and hostile work environment should be dismissed."  The motion does not address Willborn's cause of action for gender discrimination or mention Willborn's cause of action under Title VII until the second page of the motion, when it is mentioned only in reference to the origins of the TCHRA.

^[4] Texas Civil Practice and Remedies Code section 37.004 states:

Subject Matter of Relief

(a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Tex. Civ. Prac. & Rem. Code Ann. ' 37.004 (Vernon 1997).

^[5] On December 3, 2003, Willborn filed his last live pleadingBhis fourth amended original petition.  This amended version included the same causes of action as did his third amended petition: gender discrimination, sexual harassment, and sexually hostile environment in violation of the TCHRA and Title VII.  On December 4, 2003, the trial court struck the petition based on Formosa's motion on the ground of surprise.