Oral arguments in the case of Nicholas v. SAWS were heard recently. The Defendant appealed the matter to the Texas Supreme Court after losing before the Fourth Court of Appeals. See my prior post about that appeal here and here. In the oral arguments, the defense attorney, Rachel Ekery, said the harassment by the supervisor, Greg Flores, was not true harassment. She argued that simple invitations to lunch did not rise to the level of sexual harassment. See San Antonio Express News report here. (account required).

The attorney for the employee, Jeff Small, counters that no, in context, those invitations were indeed harassment. Just as important is what the employee, Debra Nicholas, believed. Virtually all the cases that address the issue agree that reporting sexual harassment or any harassment must be reasonable and made in good faith. Someone may report outlandish harassment, but if she sincerely believes it is harassment and the harassment satisfies some modest level of reasonableness, then that report will constitute opposition to discriminatory activity. If the action rises to the level of opposing discriminatory conduct, then the employee is protected from retaliation. If someone like Debra Nicholas sincerely believes the lunch invitations amounted to harassment and on review by a court, her belief seems reasonable, then yes, lunch invitations can amount to sexual harassment.

Ms. Nichoals’ case is about the retaliation. She was placed under the supervision of Greg Flores, the person she helped counsel about sexual harassment. Vice-President Flores started writing her up and then eliminated her job. So, one question will be was her opposition to discriminatory conduct sincere and reasonable? Greg Flores invited the two much junior female workers to lunch many times. He commented on their personal appearance many times. They both complained about his interest. One said it was “weird.” He was much senior to both of the junior female workers.

One of the women said she would file a formal complaint if the lunch invitations did not stop. So, yes, it is an uphill climb to argue that when Debra Nicholas and the SAWS CEO counseled Greg Flores about these lunch invitations (and the overall inappropriate attention to the two women), that Ms. Nicholas in particular was not sincere. Indeed, the complaints actually started with the General Counsel for SAWS, Frank Stenger-Castro. He was first approached by one of the women. He then spoke to the CEO, David Chardovayne about Greg Flores’ interest in the two women.  He said this is a problem that should be “nipped in the bud” before it became a much larger problem. The CEO asked Ms. Nicholas to investigate because he did not want HR involved.

So, now SAWS essentially argues that Ms. Nicholas’ opposition (presumably along with the opposition of the CEO and the General Counsel) was not made in good faith or reasonable. I have to say, that is a silly argument. The whole point was to keep this investigation “under the radar” and keep this matter from becoming subject to public scrutiny. Doubtless, the employer simply wanted to deal with it quietly and not have to include this on any briefing chart to the Board of Trustees. This defense sounds like an argument that would have been briefly considered by the trial defense and quickly rejected because it is just too thin. Now, the new appellate lawyers have adopted it.

The plaintiff’s lawyer, Jeff Small says the employer is moving the goal posts. He means that this all started with upper management at SAWS. Yet, now, SAWS wants to argue that the employee (and the CEO and the General Counsel) did not oppose Greg Flores’ discriminatory actions in good faith. SAWS has spent $684,743 fighting this case since its inception. I am sure they could have settled the case for much less much sooner. As then council member Ivey Taylor said earlier when the bill was a mere $492,000, what if anything, was done sooner to settle this matter and avoid these high defense costs?  As I said in 2013, probably not much. Now, all they can offer is a rather weak defense.

But, I have to add, this weak defense theory might be enough. The Texas Supreme Court is very receptive to any defense offered by employers.

The Fourth Court of Appeals opinion was written by a woman, Judge Sandee Bryan Marion. Sometimes, it may require a woman to state clearly that sometimes, a lunch invitation is not really just a lunch invitation.