Opinion
CA 3:00-CV-2248-R
September 21, 2001
MEMORANDUM OPINION AND ORDER
Defendant's Motion for Summary Judgment is before the Court. Plaintiff Cecilia Luna ("Luna") filed this suit against Defendants Walgreen Co. d/b/a Walgreens ("Walgreens"), her former employer, and Robert Lopez ("Lopez"), her former supervisor, alleging: (1) sexual harassment, national origin discrimination, and retaliation/wrongful termination in violation of the Texas Commission on Human Rights Act codified in Tex. Lab. Code Ann. § 21.0151 et seq. ("TCHRA"); (2) intentional infliction of emotional distress; and (3) negligent hiring, retention, and supervision. For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED as to all claims.
I. BACKGROUND FACTS
On January 11, 1999, Luna was hired to serve as head cosmetician at the Walgreens store located at Illinois Avenue. The functions of the head cosmetician position included: providing customers with courteous, friendly, fast and efficient cosmetic service and information; coordinating, constructing, and maintaining cosmetic department displays to include promotional and seasonal merchandise; registering sales; and maintaining inventory and appearance. In this position, Luna reported directly to Freeman, the Store Manager. Luna's regular work schedule was Monday through Friday, 8:00 to 4:30.
Soon after being hired, Luna had problems with excessive absences at work. Luna was diagnosed with cervical cancer and underwent surgery on March 29, 1999. Freeman and Walgreens accommodated Luna through April 1999 by not scheduling her when she was unable to work and tolerating her absences during that time. From May 1999 to August 1999, Luna continued to have follow-up care related to her cancer treatment. During this time period, Luna also: (1) suffered two injuries to her fingers that required her to miss more work for doctors appointments and physical therapy; and (2) cared for her children when they were ill, causing her to miss still more work. From the beginning of her employment in January 1999 to August 1999, Luna was completely absent approximately twenty-four days and came in late and/or left early on approximately thirty-nine more days. This number of absences was considered excessive under Walgreens' absence policy, and Freeman determined that Luna's absences were placing an undue burden on the store.
On June 16, 1999, Freeman issued Luna a written disciplinary notice for leaving the store to take an unauthorized break even after she was specifically instructed not to leave. Luna acknowledged this violation and signed the notice. Then on August 12, 1999, Freeman verbally counseled Luna regarding her poor attendance at work. At that time, Freeman attempted to determine the severity and expected duration of Luna's medical problems and discussed with her the option of taking disability leave until the problems were resolved. Freeman explained to Luna that her continued absences were causing her department and the store to suffer. Luna declined to take disability leave at that time because, under Walgreens' policy, it was unpaid. In spite of Freeman's verbal counseling, Luna was again absent on August 18, 1999. As a result, Freeman issued Luna a written disciplinary notice. This written disciplinary notice: (1) memorialized his earlier conversation with Luna; (2) discussed and reiterated Luna's option to take disability leave; and (3) indicated that this was her final warning and that any further absences or tardiness would result in immediate termination. Luna did not heed this final warning and was again absent on August 31, 1999. Luna was terminated on August 31, 1999, for excessive absenteeism.
Luna again elected not to take disability leave.
During her employment from January 1999 to August 1999, Luna never formally reported the alleged national origin discrimination or the alleged sexual harassment, and she never utilized any of Walgreens' anti-harassment/anti-discrimination administrative policies and procedures. In fact, Luna did not formally report the alleged national origin discrimination or the alleged sexual harassment until after her termination.
Luna filed a post-termination complaint at Walgreens, claiming she was discriminated against based on her national origin because Hispanic employees were prohibited from speaking in Spanish while at Walgreens. Walgreens performed a full investigation of this complaint.
Walgreens argues this policy was in place so that non-Spanish speaking customers would not feel uncomfortable in the store.
Furthermore, Luna never complained of sexual harassment during Walgreens' initial investigation. Walgreens first became aware of Luna's sexual harassment allegations when they received Luna's charge of discrimination. Walgreens then opened a second investigation regarding Luna's new sexual harassment allegations. Luna claimed Lopez, one of her supervisors, made sexually suggestive comments and gestures to her at work. Instances in which Lopez allegedly sexually harassed Lopez include the following: (1) Lopez approached Luna while grabbing and scratching his genital region; (2) Lopez made inquiries into Luna's sex life and made sexual propositions; (3) Lopez inquired as to whether Lopez douched or not; and (4) questioning Luna about the size of her breasts.
Walgreens' two investigations revealed no reasonable cause to believe their was any discrimination or harassment and, in the absence of an authorized disability leave, Luna's termination was upheld.
II. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 55(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the non-moving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc. 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Because cases involving claims of employment discrimination involve nebulous questions of motivation and intent, summary judgment is usually considered an inappropriate tool for resolving these cases. See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). If the defendant, however, is able to present strong evidence of a legitimate, nondiscriminatory reason for its actions and the plaintiff is unable to counter with additional evidence of pretext, summary judgment may be properly granted. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994); Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993).
B. Luna's TCHRA Claims
1. Administrative Claims
Luna filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on November 8, 1999. See Joint Appendix, Exhibit 15. In her charge, Luna claimed sex and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). Id. In her charge, Luna made no reference to violation of any state laws and did not check the box at the bottom of the form stating that she wanted the charge to be "filed with both the EEOC and the State or local agency." Id.
On January 25, 2000, Luna filed an amended charge of discrimination, adding a claim of disability discrimination. See Joint Appendix, Exhibit 16. Again, the box for dual filing was not checked. Id.
The EEOC did not provide the Texas Commission on Human Rights ("TCHR") with a copy of either of Luna's charges. See Joint Appendix, Exhibit 17. The EEOC issued a dismissal and a notice of right to sue on May 24, 2000. See Joint Appendix, Exhibit 18. Luna filed this lawsuit in state court on August 28, 2000, alleging sexual harassment, national origin discrimination, and retaliation under the TCHRA. See Tex. Lab. Code Ann. § 21.0151 et seq. Luna subsequently served the first amended original petition. Walgreens later removed the case to federal court on diversity grounds. Luna never requested or received a right to sue from the TCHR, which allows her to bring this civil action. See Joint Appendix, Exhibit 6, p. 180/3-8; Exhibit 17.
2. This Court lacks jurisdiction over Luna's TCHRA Claims.
Under binding Fifth Circuit precedent, Luna's failure to exhaust state administrative remedies and receive a right to sue letter from the TCHR precludes this Court from asserting jurisdiction. Jones v. Grinnell Corp., 235 F.3d 972, 974-75 (5th Cir. 2001). Thus, Walgreens and Lopez are entitled to summary judgment on Luna's TCHRA claims based on sexual harassment, national origin discrimination, and retaliation/wrongful termination.
i. Jones v. Grinnell Corp.
The facts in the Jones case are identical to the facts in this case. In Jones, the plaintiff filed an age discrimination complaint with the EEOC on February 20, 1997. Jones, 235 F.3d at 973. Like Luna, the plaintiff in Jones failed to check the box at the bottom of the form stating that he wanted the charge to be "filed with both the EEOC and the State or local agency" and failed to cite to any state law violated, only mentioning the federal Age Discrimination in Employment Act ("ADEA"). Id. As a result, the EEOC did not forward the charge to the TCHR, thereby preventing the TCHR from receiving notice of the complaint and from exhausting all TCHRA state remedies as required by law. See id. at 973-75; see also Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991) (holding that a complainant "must first exhaust the [Texas Human Rights Act's] administrative remedies prior to bringing a civil action"); Tex. Lab. Code Ann. § 21.203 (encouraging "settlement negotiations, conciliation, facilitation, mediation"). The EEOC issued a right to sue letter on April 27, and the plaintiff in Jones filed a lawsuit in state court two weeks later, alleging a violation of the TCHRA. Jones, 235 F.3d at 974. The defendant in Jones later removed the case to federal court on diversity grounds. Id.
A jury in the Northern District of Texas found that the defendant dismissed the plaintiff in violation of the TCHRA, and awarded the plaintiff damages. Id. The district court denied defendant's motion for judgment as a matter of law in regards to liability, and defendant appealed. Id. at 973. The Fifth Circuit vacated the district court's judgment, holding that plaintiff's failure to exhaust state administrative remedies and receive a right to sue letter from the TCHR precluded the district court from asserting jurisdiction. Jones, 235 F.3d at 974-75.
ii. Analysis and Application
In Jones, the Fifth Circuit held that a plaintiff must exhaust all state administrative remedies under the TCHRA and receive a right to sue letter from the TCHR before filing a civil lawsuit. Id. Under the TCHRA, the exhaustion requirement can be met in only two ways: (1) the TCHR does not find reasonable cause and dismisses the complaint; or (2) the TCHR cannot resolve the complaint within 180 days and neglects to issue timely a right to sue letter. See Tex. Lab. Code Ann. § 21.208. The court in Jones also held that a right to sue letter from the EEOC cannot substitute for a right to sue letter from TCHR. Jones, 235 F.3d at 974-75; see also Vielma v. Eureka Co., 218 F.3d 458, 464 (5th Cir. 2001) (holding that the right to sue letters are not interchangeable in terms of triggering the 60-day filing requirement).
Luna neither received a right to sue letter from the TCHR nor waited 180 days for the TCHR to resolve her complaint. Pursuant to Jones, if a complainant fails to exhaust her state administrative remedies, the TCHRA jurisdictionally bars this Court from hearing the case regardless of equitable and policy concerns. Jones, 235 F.3d at 974 (citations omitted) (emphasis added). Therefore, Luna's failure to exhaust state remedies precludes this civil action, and Walgreens and Lopez are entitled to summary judgment on all of Luna's TCHRA claims.
C. Luna's Claim for Intentional Infliction of Emotional Distress
Luna alleges that Lopez, one of her supervisors, subjected her to sexually suggestive, derogatory comments and sexual propositions that inflicted severe emotional distress on her. Luna, however, has failed to prove the required elements of a claim for intentional infliction of emotional distress. Thus, Walgreens and Lopez are entitled to summary judgment on Plaintiff's claim of intentional infliction of emotional distress.
Under Texas law, a party claiming intentional infliction of emotional distress must establish: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress that the plaintiff suffered was severe. See Brewerton v. Dalyrymple, 997 S.W.2d 212, 215 (Tex. 1998) (citing Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). Liability is only found if the conduct is "so extreme and outrageous that it goes beyond all possible bounds of decency and is utterly intolerable in a civilized community." Id. at 215. Whether an employee meets this threshold is, in the first instance, a question of law for the court. Id.
Ordinary employment disputes do not meet the threshold requirements for intentional infliction of emotional distress claims. See MacArthur v. University of Texas Health Ctr., 45 F.3d 890, 898 (5th Cir. 1995); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 613 (Tex. 1999) (citation omitted). To establish a cause of action for intentional infliction of emotional distress in the workplace, an employee must prove the existence of some conduct that brings the dispute outside the scope of ordinary employment controversies, and into the realm of extreme and outrageous conduct. See Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1376 (5th Cir. 1992); Gearhart v. Eye Care Ctr. of America, Inc., 888 F. Supp. 814, 822 (S.D. Tex. 1995). In Gearhart, plaintiff alleged sexual harassment and intentional infliction of emotional distress based on eight or nine incidents that occurred over a six week period. Gearhart, 888 F. Supp. at 822. The incidents included one of her supervisors groping plaintiff's breasts, touching her hair, kicking her in the buttocks, and having various discussions about plaintiff's breasts. Id. The district court held that, while the alleged conduct of plaintiff's supervisors was "perhaps offensive and disrespectful," it was "not so vile or reprehensible to be regarded as being beyond `all possible bounds of decency' or `utterly intolerable in a civilized community.'" Id. The district court granted the defendant employer's motion for summary judgment. Id. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999) is the only case in which the Texas Supreme Court upheld an intentional infliction of emotional distress verdict in the employment context. The incidents in GTE Southwest involved harassment, utter humiliation, physical threats and/or assaults on a frequent, if not daily basis. Id. The evidence indicated that the plaintiffs' supervisor was in a continuous rage and subjected the plaintiffs to bizarre behavior. The Texas Supreme Court held that the plaintiffs' supervisor's conduct went beyond an ordinary employment dispute and was extreme and outrageous.
Luna's allegations of sexually suggestive comments and gestures lacks the indicia of outrageousness present in GTE Southwest. Therefore, Walgreens and Lopez are entitled to summary judgment on Luna's claim of intentional infliction of emotional distress.
D. Luna's Negligence Claims
Luna alleges that Walgreens was negligent in its hiring, retention, and supervision of Lopez, which resulted in injuries to her.
1. Negligent Retention
A negligent retention claim is only viable if the employer's employee commits an underlying actionable tort. See Gonzales v. Willis, 995 S.W.2d 729, 738 (Tex.App.-San Antonio 1999, no pet.). Luna relies upon her intentional infliction of emotional distress claim as the underlying actionable tort that makes her negligent retention claim viable. As discussed infra, the alleged sexually suggestive comments and gestures fail to prove the required threshold elements of a claim for intentional infliction of emotional distress, and, as a matter of law, Lopez's actions were not extreme and outrageous. Therefore, because there is no underlying actionable tort to support Luna's negligent retention claim, Walgreens is entitled to summary judgment on Luna's negligent retention claim.
2. Negligent Hiring and Supervision
Walgreens also moves for summary judgment on plaintiff's claim of negligent hiring and supervision, claiming that the plaintiff did not suffer physical injury as required to support the negligence claim.
Under the common law doctrine regarding negligent hiring and supervision, an employer has a duty to adequately hire, train and supervise employees so that they do not cause injury to third parties. See Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex.App. — Hous. [1st Dist.] 1999, pet. denied). Texas courts and federal courts applying Texas law have followed the theory announced by the San Antonio Court of Appeals in Gonzales v. Willis, 995 S.W.2d 729 (Tex.App.-San Antonio 1999, no pet.), which recognized that a cause of action for negligent supervision and training requires that the employee in question commit an actionable tort, causing a "legally compensable injury" — not necessarily a physical injury. Id. at 739; accord Nichols v. Apartment Temporaries Inc., No. Civ. 99-2538-BC, 2001 WL 182701, at *5 (N.D. Tex. Jan. 22, 2001); Griego v. United States, No. Civ. 99-164-DB, 2000 WL 33348763 *6 (W.D. Tex. June 2, 2000); Garcia v. Allen, 28 S.W.3d 587, 593 (Tex.App — Corpus Christi 2000, pet. denied).
Luna fails to show that Walgreens employees committed an actionable tort that was the proximate cause of her injury, if any. Thus, Walgreens is entitled to summary judgment on Luna's negligence claims.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED as to all claims. IT IS SO ORDERED.