SEXUAL HARASSMENT CLAIM - SAME SEX HARASSMENT IN EMPLOYMENT
09‑0796 JERRY GUMPERT AND MARTIN COYNE v. ABF FREIGHT SYSTEM, INC., BARRY SIRCY, TOMMY
WALKER, ROBERT GRAVES, GEORGE WARREN, PERRY WAYNE MIDDLEBROOK, RICHARD CRAWFORD,
RICHARD FISER, DAN NOONKESTER, RICHARD MARTINEZ, RICHARD PASSMORE AND LEONARD ESNER;
from Dallas County; 5th district (05‑07‑01717‑CV, 293 SW3d 256, 05‑20‑09, pet denied Nov. 2009)
(defamation claim fails, civil conspiracy likewise in the absence of underlying tort) (same-sex harassment,
employment retaliation claim)
Gumpert and Coyne's claim for discrimination based on sex was brought under section 21.051 of the Texas
Commission on Human Rights Act in the Texas Labor Code. Tex. Lab. Code Ann. § 21.051 (Vernon 2006).
Under section 21.051, it is unlawful for an employer to discriminate in any manner in connection with the
terms, conditions, or privileges of employment because of the sex of the employee. Id. An employer may be
held liable for sex discrimination if its employees commit acts of sexual harassment creating a hostile work
environment. See Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 472 (Tex. App.-Austin 2000, pet. denied).
In 1998, the United States Supreme Court addressed discrimination in the context, as is presented here, of a
claim for sexual harassment based on the alleged conduct of co-workers of the same gender. See Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). See Footnote 3 The court held that such claims were
cognizable but stressed that the claimant must always prove the conduct at issue was discrimination because
of sex and not merely conduct that is “tinged with sexual connotations.” Id. at 81. Workplace harassment is
not automatically discrimination because the words used have sexual content or overtones. Id. at 80; Butler v.
Ysleta Indep. Sch. Dist., 161 F.3d 263, 268 (5th Cir. 1998).
The Supreme Court went on to outline three ways in which a plaintiff could show that same- sex harassment
amounted to sex discrimination. First, the plaintiff could show the alleged harasser made explicit or implicit
proposals of sexual activity and provide credible evidence that the harasser was homosexual. See Oncale,
523 U.S. at 80; La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002). Second, the plaintiff could
demonstrate the harasser was motivated by general hostility to the presence of members of the same gender
in the workplace. See Oncale, 523 U.S. at 80; La Day, 302 F.3d at 478. And third, the plaintiff could offer
direct comparative evidence of how the alleged harasser treated members of both sexes in a mixed-gender
workplace. See Oncale, 523 U.S. at 81; La Day, 302 F.3d at 478.
Gumpert and Coyne do not contend that any of the individual defendants were homosexual or that the
individual defendants believed Gumpert and Coyne were homosexual. Neither do they contend that the
individual defendants made either implicit or explicit proposals of sexual activities. Instead, they contend the
conduct at issue was, “as a matter of logic,” discriminatory because it was directed only at males, namely
Gumpert and Coyne, and those ABF employees who sympathized with them. Under Gumpert and Coyne's
asserted logic, all acts of harassment could be considered discriminatory merely because they happened to
be directed only at persons of one gender. This logic fails to distinguish between harassment that happens to
be directed at persons of a particular gender and harassment that is directed at persons because of their
gender. Only the latter can be discriminatory. See Oncale, 523 U.S. at 80.
ABF presented summary judgment evidence that showed the offensive postings and other alleged conduct
were directed at Gumpert and Coyne because of disagreements they had with co- workers and not because
they were men. Gumpert and Coyne's own testimony established the animosity against them stemmed from
conflicts over things such as disputed work hours, membership in the local union, and seniority. Indeed,
Gumpert testified in his deposition that the individual defendants did not make the postings “because [he] was
a man.” Coyne testified in his affidavit that only male employees, including him, Gumpert, and other men who
sympathized with them, were subjected to the harassing behavior. Neither man, however, presented any
evidence that there were any women employees who sympathized with them or who had similar work-related
disputes with the individual defendants and were treated differently. In fact, both men testified in their
depositions that they had not noticed the individual defendants generally treating women employees at ABF
any differently than the male employees. Absent any direct comparative evidence, Gumpert and Coyne have
failed to raise an issue of material fact with respect to their claim for discrimination.
After reviewing the record, we conclude the trial court did not err in granting summary judgment to ABF on
Gumpet and Coyne's claim for discrimination. All the evidence shows that the alleged harassment was
directed at Gumpert and Coyne for reasons unrelated to their gender. Accordingly, their claim for
discrimination must fail as a matter of law.