Summary
affirming summary judgment in sexual-harassment case where plaintiff's supervisors frequently made sexually inappropriate remarks, commented about her breasts, referred to male employees as plaintiff's lovers, stood over her and peered down her shirt, forbade her from dating other employees, repeatedly indicated desire to date her, and once came toward her in menacing fashion as if to touch her sexually
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No. 04-06-00212-CV
Delivered and Filed: October 25, 2006.
Appeal from the 288th District Court, Bexar County, Texas, Trial Court No. 2004-CI-08101, Honorable Michael P. Peden, Judge Presiding.
Affirmed in Part; Reversed and Remanded in Part.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Melissa Staller (Staller) filed suit against Service Corporation International (SCI) and SCI Texas Funeral Services, Inc. (SCI Texas) alleging sexual harassment and retaliation claims under the Texas Commission on Human Rights Act (TCHRA). On appeal, Staller contends that the trial court erred in granting summary judgment because: (1) a genuine issue of material fact precluded summary judgment in favor of SCI; (2) SCI Texas's motion for summary judgment addressed only her hostile-environment sexual harassment claim, not her claims of retaliation and quid pro quo sexual harassment; (3) genuine issues of material fact precluded summary judgment in favor of SCI Texas; and (3) the trial court considered improper summary judgment evidence offered by SCI Texas. We affirm the trial court's order granting summary judgment in favor of SCI Texas as to Staller's hostile-environment claim, and we affirm the trial court's order granting summary judgment in favor of SCI. We reverse the trial court's order granting summary judgment in favor of SCI Texas as to Staller's retaliation and quid pro quo sexual harassment claims, and we remand the cause to the trial court for further proceedings.
BACKGROUND
Staller worked at the Zizik-Kearns Funeral Home (an assumed business name for SCI Texas) for approximately seven years, first as a bookkeeper and later as an administrative assistant to SCI Texas's Area Vice President Greg Meek (Meek). SCI Texas is a wholly-owned subsidiary of SCI Funeral Services, Inc., which is a wholly-owned subsidiary of SCI.
In 2003, Staller was terminated from her job. Following her termination, Staller filed suit against SCI Texas and SCI, alleging that two of her supervisors, Meek and Joe Ballesteros, sexually harassed her in the workplace and that Meek fired her in retaliation for her complaints of sexual harassment and because she rejected his romantic advances. Both SCI and SCI Texas moved for summary judgment, and the trial court granted both motions as to all of Staller's claims. The trial court entered separate orders as to each entity.
STANDARD OF REVIEW
We review a summary judgment ruling under a de novo standard of review. Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). A motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of summary judgment, we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon, 690 S.W.2d at 549. Additionally, all evidence favorable to the non-movant is taken as true. Id. at 548-49.
SINGLE EMPLOYER
Staller contends that the trial court erred in granting summary judgment in favor of SCI on the ground that SCI was not Staller's employer. SCI is the parent corporation of SCI Funeral Services, Inc., which is the parent corporation of SCI Texas. Under the TCHRA, SCI cannot be held liable for an unlawful employment practice unless it qualifies as an "employer" under the statute. See Tex. Lab. Code Ann. § 21.051 (Vernon 2006). Superficially distinct entities may be considered a "single employer" if they are sufficiently interrelated to constitute a single, integrated enterprise. Trevino v. Celanese Corp., 701 F.2d 397, 403-04 (5th Cir. 1983). A four-factor test is applied in determining whether distinct entities constitute a single, integrated enterprise: (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. Id. at 404. This analysis, however, ultimately focuses on the second factor: centralized control of labor relations. Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 777 (5th Cir. 1997); Trevino, 701 F.2d at 404. The second factor is the most important and asks "What entity made the final decisions regarding employment matters related to the person claiming discrimination?" Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 524 (Tex.App.-Houston [1st Dist.] 2000, pet. denied); Lusk, 129 F.3d at 777; Trevino, 701 F.2d at 404.
Because one of the purposes of the TCHRA is to execute the policies in Title VII of the federal Civil Rights Act of 1964 and because Texas has little case law interpreting the TCHRA, federal case law may be cited as authority. Tex. Lab. Code Ann. § 21.001(1) (Vernon 2006); Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 524 (Tex.App.-Houston [1st Dist.] 2000, pet. denied).
Staller argues that she presented sufficient evidence to raise a genuine issue of material fact as to whether SCI was Staller's employer. Staller's evidence shows that SCI's CEO referenced SCI's 19,000 employees in a presentation and that SCI admitted those employees included the employees at SCI Texas; that Meek reports to a person at SCI Texas who reports to the Vice President of Major Market Operations at SCI; and that SCI and SCI Texas share the same corporate address and one or more company officers. Although this evidence establishes common management and ownership between SCI and SCI Texas, these factors alone are insufficient to establish that the two entities acted as a single employer. Lusk, 129 F.3d at 778. The limited liability doctrine creates a strong presumption that a parent corporation is not the employer of its subsidiary's employees. Id. To rebut this presumption, a party must provide evidence of control that suggests a significant departure from the ordinary relationship between a parent and its subsidiary. Id. A party must show some nexus to the subsidiary's daily employment decisions. Id.
The evidence provided by Staller is insufficient to raise a fact issue as to whether SCI Texas and SCI are a single employer for purposes of the TCHRA. The only evidence of any involvement by SCI in the employment decisions of SCI Texas is that Meek spoke with either Janet Riley, director of employment law compliance for SCI Funeral, or someone in the human resources department before terminating Staller or any other employee. Riley's affidavit states that one of her duties was to give employment law advice and assistance to managerial employees at various funeral homes.
Although Meek consulted Riley or a human resources employee before firing employees and on some other disciplinary decisions, Meek testified that he made the decision to terminate Staller. There is no evidence that Riley acted or even had the authority to act as a final decision-maker with regard to Staller's employment. Further, the record shows that before terminating Staller, Meek consulted his supervisor, also an employee of SCI Texas. Because Staller does not raise a fact issue regarding whether SCI was the final decision-maker on employment matters relating to Staller, we affirm the trial court's order granting summary judgment in favor of SCI.
RETALIATION AND QUID PRO QUO SEXUAL HARASSMENT
Staller contends that the trial court erred in granting summary judgment in favor of SCI Texas on grounds not presented in the motion. Specifically, Staller argues that because SCI Texas's motion addressed only Staller's constructive discharge and hostile-environment sexual harassment claims, the trial court erred in also granting summary judgment as to Staller's retaliation and quid pro quo sexual harassment claims. Under Texas Rule of Civil Procedure 166a(c), "[t]he motion for summary judgment shall state the specific grounds therefor" and the trial court is to render judgment if "the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response." Tex. R. Civ. P. 166a(c). A motion for summary judgment must itself expressly present the grounds upon which it is made, and it must stand or fall on the grounds expressly presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Whittley v. Heston, 954 S.W.2d 119, 121 (Tex.App.-San Antonio 1997, no pet.).
SCI Texas argues that summary judgment as to all of Staller's claims was proper because SCI Texas referenced Staller's quid pro quo claim in its motion and addressed Staller's retaliation and quid pro quo claims in its reply to her response. Staller contends that summary judgment was improper because the motion itself was required to address all of Staller's claims, and SCI Texas's motion addressed only Staller's hostile-environment sexual harassment claim. Courts are clear that there are two distinct categories of sexual harassment claims: (1) quid pro quo harassment, in which employment benefits are conditioned on sexual favors; and (2) hostile-environment harassment, in which harassment creates a hostile or offensive work environment. Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 35 (Tex.App.-Austin 1998, pet. denied). The U.S. Supreme Court explained the difference between the two claims in terms of whether plaintiffs can prove that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54 (1998). If they can present such proof, they establish an actionable quid pro quo sexual harassment claim, and the employment decision itself constitutes a change in the terms and conditions of employment. Id. In contrast, an actionable claim of hostile-environment sexual harassment involves sexual harassment occurring before an employment decision is made or where there is no employment decision at all, and plaintiffs must prove that the alleged harassment altered the terms and conditions of their employment; that is, they must prove that the harassment was severe or pervasive. Id. at 754.
In arguing that it referenced Staller's quid pro quo claim in its motion, SCI Texas points to the section of its motion entitled "Nature of the Case" in which it quoted each of Staller's allegations from her First Amended Original Petition. However, aside from quoting Staller's general allegations, at no point in the motion did SCI Texas identify or provide arguments against Staller's quid pro quo claim. Instead, SCI Texas addressed only Staller's hostile-environment sexual harassment claim, devoting almost all of its arguments to countering the required element that the alleged harassment affect a term, condition, or privilege of her employment. The only other argument offered by SCI Texas regarding sexual harassment was that it was undisputed that Staller had interpersonal problems with co-workers, that other employees had complained about her, and that she had been advised of these issues on numerous occasions. At no time did SCI Texas mention a quid pro quo claim, mention any of its elements, or address the essence of such a claim: whether Staller's employment benefits, including keeping her job, were conditioned on submitting to her supervisor's sexual demands. Similarly, SCI Texas's motion did not mention Staller's retaliation claim or provide any arguments regarding that claim or any of its elements. A movant must conclusively negate at least one essential element of a cause of action in order to be entitled to summary judgment on that claim. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Here, the only claims identified and supported by arguments in SCI Texas's motion were Staller's hostile-environment sexual harassment claim and a constructive discharge claim. Thus, SCI Texas's motion cannot support summary judgment on Staller's retaliation and quid pro quo sexual harassment claims.
The record does not show that Staller alleged constructive discharge, and Staller does not raise an issue as to this claim on appeal.
Nevertheless, SCI Texas argues that summary judgment was still proper on all of Staller's claims because SCI Texas addressed and provided arguments for each claim in its reply to Staller's response. Other courts of appeals have held that because the grounds for a motion for summary judgment must be set out in the motion itself, a movant may not raise a new ground for summary judgment in a reply to the nonmovant's response. Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex.App.-Austin 1996, no writ); R.R. Publ'n Prod., Inc. v. Lewisville, 917 S.W.2d 472, 473-74 (Tex.App.-Fort Worth 1996, no writ). We agree. In addition, we agree with both courts' further assessment that allowing such a reply would undermine Texas Rule of Civil Procedure 166a(c), which states that a summary judgment motion and any supporting affidavits must be filed at least 21 days before the date of the hearing unless the movant obtains leave of court. Tex. R. Civ. P. 166a(c). Here, instead of obtaining leave of court to file an amended or supplemental summary judgment motion as contemplated by the rule, SCI Texas filed a reply to Staller's response and included two new independent grounds for summary judgment the day before the summary judgment hearing. The Sanders court pointed out the problem with allowing such a reply: "The purpose of the time requirements in Rule 166a(c), to give the nonmovant notice of all claims that may be summarily disposed of and the specific grounds on which the movant relies, would be severely undercut if a movant's `reply' in which new independent grounds were presented could be treated as an amended motion for summary judgment." 930 S.W.2d at 911. Because the trial court granted summary judgment in favor of SCI Texas on two causes of action not presented in SCI Texas's motion, we reverse the trial court's order granting summary judgment in favor of SCI Texas as to Staller's claims of retaliation and quid pro quo sexual harassment, and we remand the cause back to the trial court for consideration of those claims. Bandera Elec. Co-op, Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex. 1997); Page v. Geller, 941 S.W.2d 101, 102 (Tex. 1997); Stancu v. Stalcup, 127 S.W.3d 429, 432 (Tex.App.-Dallas 2004, no pet.)
Because we are remanding Staller's quid pro quo and retaliation claims, we need not reach two of the other issues Staller raises on appeal: whether she has raised a genuine issue of material fact as to her quid pro quo claim and whether the trial court erred in admitting certain summary judgment evidence. The evidence Staller claims was erroneously admitted is not relied on by this court in reaching our decision as to the remaining issues.
HOSTILE-ENVIRONMENT SEXUAL HARASSMENT
Staller argues that the trial court erred in granting summary judgment in favor of SCI Texas as to her hostile-environment sexual harassment claim because she raised a genuine issue of material fact as to whether the alleged harassment affected a term, condition, or privilege of her employment. See Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 131 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (listing requirement that harassment complained of affect term, condition, or privilege of employment). To have an actionable claim for hostile-environment sexual harassment, a plaintiff must show that the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to create a hostile or abusive working environment. Garcia v. Schwab, 967 S.W.2d 883, 885 (Tex.App.-Corpus Christi 1998, no pet.) The work environment must be both objectively and subjectively offensive — one that a reasonable person would find hostile or abusive and one that the victim in fact did perceive to be so. City of Houston v. Fletcher, 166 S.W.3d 479, 489 (Tex.App.-Eastland 2005, pet. denied). When determining whether a work environment is sufficiently hostile or abusive, we must review the totality of the circumstances, including (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with an employee's work performance. Id.; Green, 1 S.W.3d at 131-32. The court's inquiry must focus on whether the alleged harassment has undermined the employee's workplace competence, discouraged the employee from remaining on the job, or kept the employee from advancing in his or her career. Fletcher, 166 S.W.3d at 490. A hostile-environment claim is designed to address conduct that is so severe or pervasive that it destroys an employee's opportunity to succeed in the workplace. Id. The law's overall goal of equality is not served if a claim can be maintained solely based on conduct that wounds or offends but does not hinder an employee's performance. Id.
This is the only element of the hostile-environment sexual harassment claim challenged in SCI Texas's summary judgment motion.
Staller's allegations pertain to two of her supervisors, Ballesteros and Meek. With respect to Ballesteros, Staller alleges that the following conduct occurred: he made sexually inappropriate remarks to her such as "I'll bet you like it big," whenever she used the word "big" in conversation, he made comments to her about the size of her breasts, he referred to male employees of the company as her "lover," he stood over her when she sat at her desk and attempted to look down her shirt, and he came toward her in a menacing fashion as if to grab her in a sexual manner. With respect to Meek, we consider only the allegations for which Staller filed a timely EEOC complaint. The allegations include the following: that Meek repeatedly indicated his desire to go out and have a drink with her but stated that he could not because of what other people would say and that he forbade her from dating another employee.
Texas law requires that a complaint of unlawful employment practices be filed with the Equal Employment Opportunity Commission (EEOC) or the Texas Commission on Human Rights within 180 days after the alleged unlawful employment practice occurred. Tex. Lab. Code Ann. § 21.202(a) (Vernon 2006). This time limit is mandatory and jurisdictional. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996). Staller filed her first complaint with the EEOC on August 21, 2003. Therefore, we consider Staller's allegations of unlawful conduct that occurred within 180 days prior to August 21, 2003.
Evidence of Staller's termination is not set forth here because it relates to her retaliation and quid pro quo sexual harassment claims. Unlike a hostile-environment claim, retaliation and quid pro quo sexual harassment claims address situations in which there has been a tangible employment action. Ellerth, 524 U.S. at 753-54; Herbert v. City of Forest Hill, 189 S.W.3d 369, 376 (Tex.App.-Fort Worth 2006, no pet.).
Although Staller's summary judgment evidence shows that Ballesteros and Meek engaged in undesirable and offensive behavior, the evidence does not rise to the level required to raise a genuine issue of material fact that the alleged harassment was so severe or pervasive that it destroyed Staller's opportunity to succeed in the workplace and altered a term, condition, or privilege of her employment. Staller's allegations are similar to those alleged in Garcia, where the court affirmed summary judgment in favor of the defendant. In Garcia, the plaintiff's allegations against her superior included him staring at and commenting on her breasts, touching his genitals, frankly discussing highly personal and sexual matters with her, remarking on her appearance, staring at and commenting on a photograph of a female client, commenting on the appearance of other women, making repeated sexual references she felt were intended to arouse her, and insulting and yelling at her. 967 S.W.2d at 885. The court found that the plaintiff had not raised a fact issue regarding whether the alleged conduct affected a term, condition, or privilege or her employment. Id. at 887. Cases where the courts have found a hostile environment involve much more severe allegations than those presented by Staller. For example, in Dillard Department Stores, Inc. v. Gonzales, 72 S.W.3d 398, 407-08 (Tex.App.-El Paso 2002, pet. denied), the court upheld a jury verdict finding a hostile environment where a supervisor on several occasions pressed up against an employee in such a way that the employee felt the supervisor's penis; poked the employee in the buttocks with a shoebox; and stroked, rubbed, and patted the employee in a caressing way.
In addition, Staller does not provide sufficient evidence to meet the requirement that she subjectively believed her work environment to be hostile or abusive. Staller knew of the company's sexual harassment policy as early as December 1996, when she signed a statement acknowledging that she was aware of the policy. Staller also received a copy of the employee handbook, which stated that employees should report any harassment to their supervisor and if their supervisor was part of the problem, they should report the problem to the next level of management. Staller was also aware that the company provided a phone service called "CareLine" that allowed employees to place a call to make anonymous reports of harassment in the workplace.
Although Staller alleges that Meek sexually harassed her, she claims that she made only informal complaints about Ballesteros's conduct to Meek. Staller also alleges that she complained to the funeral home director. However, Staller never filed a written complaint about Ballesteros's conduct, never reported it to the next level of management above Meek, and never called the "CareLine" phone service to anonymously report the conduct. With respect to her complaints about Meek, Staller acknowledged that she never filed a written complaint, never talked to Meek's supervisor, and never called the "CareLine" phone service to make an anonymous report. The first time Staller made any type of formal complaint regarding either supervisor was when she filed her first EEOC complaint two days after she was fired. The record also shows that Staller indicated a desire to continue working at the funeral home if she had not been fired. In her deposition, the following interchange occurred:
Q: Had you not been terminated on August the 19th, 2003, do you think you would still be working there today?"
A: More than likely.
The lack of any formal complaints about the alleged conduct, not even an anonymous call to the company's "CareLine" phone service, coupled with Staller's statements that she would have continued working at the company if she had not been fired establishes that Staller failed to meet the subjectivity requirement that she herself perceived her work environment as hostile or abusive.
All of Staller's evidence taken together does not rise to the level required for an actionable claim of hostile-environment sexual harassment. Accordingly, we affirm the trial court's judgment in favor of SCI Texas with respect to Staller's hostile-environment sexual harassment claim.
CONCLUSION
The trial court's order granting summary judgment in favor of SCI is affirmed. The portion of the trial court's order granting summary judgment in favor of SCI Texas as to Staller's hostile-environment sexual harassment claim is affirmed. The portion of the trial court's order granting summary judgment in favor of SCI Texas as to Staller's retaliation and quid pro quo sexual harassment claims is reversed, and the cause is remanded to the trial court for further proceedings.