Court of Appeals of Texas, Dallas.

Donna GUIENT, Appellant,

v.

HOGAN & ASSOCIATES, INC. and Warren R. Hogan, Appellees.

No. 05-98-01560-CV.

|

June 28, 2001.

Before BRIDGES, FITZGERALD and POFF,¹ JJ.

OPINION

POFF.

*1 Donna Guient brought suit against her former employer, Hogan & Associates, Inc., and Walter Hogan (collectively “Hogan”) alleging she was sexually harassed and wrongfully discharged from her employment with Hogan. The trial court granted Hogan’s motion for summary judgment. In four points of error, Guient contends the trial court erred in granting Hogan’s motion for summary judgment because: (1) she properly stated a cause of action for wrongful discharge; (2) there were contested issues of material fact regarding the hostile work environment and the retaliatory discharge; and (3) Section 21.002 of the Texas Labor Code is unconstitutional. We affirm the judgment of the trial court.

Factual Background

Warren R. Hogan is President of Hogan & Associates Inc., which is in the training and consulting business. Hogan had fourteen employees at the time of Guient’s employment, from April 1994 until October 11, 1996. On June 10, 1996, during lunch at the Hogan lunchroom, Warren R. Hogan told a sexual story in the presence of Guient, Peggy Thomas, Dina Nicholson and Tammy Havia. The story concerned a dream Hogan said he had about Guient and her boyfriend having sex. During his deposition, Hogan admitted telling the story and conceded that the story was inappropriate and could be viewed as sexual harassment.

Guient also asserted she was sexually harassed by Hogan on certain Saturdays when they worked together. The harassment took the form of Hogan coming to work in his Bermuda shorts and at times working in his shorts without a shirt. Gueint also said that while Hogan had never touched her, or asked her for sex, he stared at her chest when he spoke to her. Guient also claimed Hogan made sexual comments in her presence concerning his sleeping with a woman who wore a red leather dress.

Guient said she told Hogan that his telling of the story about the dream had embarrassed her and had caused her discomfort. Guient claims Hogan said that such sensitivity would make it difficult for them to work together. According to Guient, she also complained to a co-worker. She said that after her complaints, her relationship with Hogan changed. Guient believed Hogan acted irritated with her and no longer took any interest in her career growth and advancement. Guient testified her work environment became so hostile that she was forced to resign.

On October 11, 1996, Guient quit her job after being counseled by the office manager, Peggy Thomas, for returning late from lunch. At that time, she gave no explanation as to why she left. Guient subsequently filed this lawsuit in which she contends she was the victim of sexual harassment, and was in a work environment so hostile that she was forced to resign. Hogan moved for a no-evidence summary judgment under Texas Rule of Civil Procedure 166a(i). The trial court granted Hogan’s motion for summary judgment. Guient appeals the summary judgment.

Standard of Review

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex.App.-Austin 1998, no pet.). Therefore, we view the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994). A no-evidence summary judgment is improper if the non-movant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact. Moore, 981 S.W.2d at 269. More than a scintilla of evidence is evidence rising to a level that would enable reasonable, fair minded persons to differ in their conclusions. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). Because Hogan moved for summary judgment on several theories and the court entered summary judgment without specifying the ground relied upon, we will affirm the judgment if any one of the theories advanced is meritorious. See Star Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Application of Law to The Facts

*2 In points of error one and two, Guient contends the trial court erred in granting Hogan’s motion for summary judgment because she properly stated a common law tort claim for wrongful discharge. Guient does not contend there were any genuine issues of material fact in dispute which precluded the summary judgment. Likewise, she does not contend that her discharge was wrongful under any statute, or under any present exception to the “at-will” employment doctrine. She does, however, urge this court to create a new common law cause of action for wrongful discharge.

Texas subscribes to the traditional view that absent an express agreement to the contrary, either the employer or employee may terminate the employment relationship at any time and for any reasons without liability. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.1998); Hancock v. Express One Int’l, Inc., 800 S.W.2d 634, 636 (Tex.App.-Dallas 1990, writ denied). An action for wrongful termination will not lie in favor of an “at-will” employee unless the employee’s discharge: (1) violates a statutory provision; (2) results solely from the employee’s refusal to commit an illegal act, Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985); or (3) is done in contravention of an express agreement that specifically limits the employer’s ability to discharge the employee “at-will.” Mitsubishi Aircraft Int’l, Inc. v. Mauer, 675 S.W.2d 286, 289 (Tex.App.-Dallas 1984, no writ).

Gueint does not contend that she had a contract right or employment agreement which limited Hogan’s right to terminate her. She concedes she was an employee “at-will.” She also concedes that she was not fired. Guient does not contend that her termination violated any statute. She contends however, that she was constructively discharged when she quit because of the hostile working environment caused by Hogan’s sexual harassment.

Sexual harassment is an unlawful employment practice under the TCHRA. Tex.Lab.Code Ann. § 21.051 (Vernon 2001); Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 455 (Tex.App.-Tyler 1996, no writ). However, since Hogan employed fewer than 15 employees, it was not covered by the act and its employees did not enjoy protection from sexual harassment. Guient argues that even though she is not protected under the TCHRA, she is still entitled to bring her cause of action because sexual harassment in the workplace is so against the public policy of Texas that such conduct gives rise to a common law cause of action for wrongful termination. Guient concludes that a constructive discharge necessitated by a hostile work environment caused by sexual harassment is so against public policy, that such a discharge should be deemed wrongful and thus actionable as an exception to the “at-will” employment doctrine.

Protection for “at-will” employees under the common law is limited. See Sabine Pilot, 687 S.W.2d at 735. In Sabine Pilot, the Texas Supreme Court created an exception for cases in which the employee was terminated for refusing to perform an illegal act. Sabine Pilot, 687 S.W.2d at 735. The Supreme Court created a cause of action for wrongful discharge because the employer’s action was so against public policy that it could not be condoned even under the “at will” employment doctrine. To date, however, the Court has not created any other exceptions. The Supreme Court has declined numerous invitations to extend the exception to other areas of public concern. See Austin v. HealthTrust, Inc., 967 S.W.2d 400 (Tex.1998) (no common law cause of action for employee fired for “whistleblowing”); Winters v. Houston Chronicle Publ’g Co., 795 S.W.2d 723, 724-25 (Tex.1990) (no common law cause of action for employee who was terminated for reporting illegal activities). This court has also declined invitations to extend the public policy exceptions beyond Sabine Pilot. See Hancock v. Express One Int’l, Inc., 800 S.W.2d 634 (Tex .App.-Dallas 1990 writ denied).

*3 In point of error one, Guient argues that she “properly stated a common law tort for wrongful discharge in violation of Texas public policy against sexual harassment.” It is not for an intermediate appellate court to enlarge or extend the grounds for wrongful discharge under the employment “at-will” doctrine. Hancock, 800 S.W.2d at 636.

As an intermediate appellate court, we are bound by the doctrine of stare decisis and we are obliged to follow the law as declared by the Supreme Court. It is within the purview of the Supreme Court, not this court, to create new exceptions to the rights of an employer to terminate an “at-will” employee. Id. The Supreme Court, however, in Sabine Pilot, emphasized the narrowness of the exceptions and prescribed limited areas of relief. We are obligated to follow the law as stated by the Supreme Court and therefore we cannot broaden the deliberately narrow exceptions created in Sabine Pilot. Id. We overrule point of error one.

In point of error two, Guient contends that she “properly stated a common law tort claim for wrongful discharge in violation of Texas public policy against retaliatory discharge.” Like sexual harassment, retaliatory discharge is prohibited under the TCHRA. The TCHRA protects an employee from retaliation because an employee “opposed a discriminating practice.” Tex.Lab.Code Ann. § 21.055(1). Termination in retaliation for complaints about sexual harassment, is an unfair labor practice under sections 21.051 and 21 .055. Tex.Lab.Code Ann. § 21.051 and 21.055 (Vernon 2001); Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52 (Tex.1998). There are numerous statutes which protect an at will employee from retaliatory discharge. Tex.Lab.Code Ann. § 451.001 (Vernon 2000) (prohibiting discharge for filing workers’ compensation claims); Tex.Civ.Prac. & Rem.Code Ann. § 122.001 (Vernon 1997) (prohibiting discharge for absence for jury duty); Tex. Health & Safety Code Ann. § 242.133 (Vernon Supp.2000) (prohibiting discharge for reporting abuse or neglect in nursing home). There is, however, no common law tort or cause of action for retaliatory discharge. Just as we were unable to accept Guient’s invitation to create a common law cause of action for wrongful discharge, we are unable to create a new common law cause of action for retaliatory discharge. We overrule point of error two.

In point of error three, Guient contends the trial court erred in granting summary judgment because there was a genuine issue of material fact “regarding whether defendant’s (Hogan’s) actions constituted a hostile work environment and whether defendant’s conduct constituted a retaliatory discharge.” We need not consider point of error three because as noted in our discussion of points one and two, Guient has no right to recover at common law for a wrongful discharge caused by a hostile work environment, nor may she recover at common law if the discharge was retaliatory. We overrule point of error three.

*4 In point four, Guient contends the trial court erred in granting summary judgment because Texas Labor Code section 21.002 “is unconstitutional as it denies Ms. Guient her constitutional right to equal protection.” In the context of her entire appeal, Guient’s challenge to the constitutionality of Texas Labor Code 21.002 is of no consequence for even if we were to hold the act unconstitutional, it would not require a reversal of the trial court’s judgment. Guient’s appeal is not addressed to any rights she may have under the statute, but rather to her rights at common law. It is also unnecessary to address the point for it is not properly before the court because the point was not raised by Guient in her reply to Hogan’s summary judgment motion. Rather than raise the unconstitutionality of the act in her summary judgment response, Guient argued in favor of her claims under the act.

Guient, as the nonmovant, must in a written answer or response to a motion for summary judgment expressly present to the trial court those issues that would defeat the movant’s right to summary judgment and failing to do so she may not later assign them as error on appeal. Hancock, 800 S.W.2d at 636 (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979); Tex.R.Civ.P. 166 a(c). Even constitutional challenges such as Guient’s that are not expressly presented to the trial court by written motion or response to a motion for summary judgment will not be considered on appeal as grounds for reversal. City of Houston, 589 S.W.2d at 677-78; Lynch v. Port of Houston Auth., 671 S.W.2d 957 (Tex.App.-Houston [14th Dist.] 1984, writ ref’d n.r.e.). Issues not expressly presented to the trial court by a written motion or answer shall not be considered on appeal as grounds for reversal. Tex.R.Civ.P. 166 a(c); City of Houston, 589 S.W.2d at 677-78. Because Guient did not raise the issue of the constitutionality of the act at trial, we overrule point of error four.

Having overruled all points of error, the judgment of the trial court is affirmed.

	Footnotes
1		The Honorable H. Bryan Poff, Jr., Retired Justice, Court of Appeals, Seventh District of Texas at Amarillo, sitting by assignment.