Wilson v. Zapata Off-Shore Co.

• Decision Date: 19 August 1991
• Docket Number: OFF-SHORE,No. 89-2825,89-2825
• Citation: 939 F.2d 260
• Parties: 56 Fair Empl.Prac.Cas. 1051, 57 Empl. Prac. Dec. P 40,942, 33 Fed. R. Evid. Serv. 1034 Elizabeth WILSON, Plaintiff-Appellant, v. ZAPATACOMPANY, Defendant-Appellee. Elizabeth WILSON, Plaintiff-Appellant, v. ZAPATA OFFSHORE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 260

939 F.2d 260

56 Fair Empl.Prac.Cas. 1051,

57 Empl. Prac. Dec. P 40,942,

33 Fed. R. Evid. Serv. 1034

Elizabeth WILSON, Plaintiff-Appellant, v. ZAPATA OFF-SHORE COMPANY, Defendant-Appellee.

Elizabeth WILSON, Plaintiff-Appellant, v. ZAPATA OFFSHORE, Defendant-Appellee.

No. 89-2825.

United States Court of Appeals Fifth Circuit.

Aug. 19, 1991.

John L. Maxey, II, Jackson, Miss., Wynn E. Clark, Owen, Galloway & Clark, Gulfport, Miss., for plaintiff-appellant.

Chris A. Lorenzen, Crain, Caton, James & Womble, Houston, Tex., for defendant-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GARWOOD and WIENER, Circuit Judges, and VELA ¹, District Judge.

GARWOOD, Circuit Judge:

Plaintiff-appellant Elizabeth Wilson (Wilson) originally filed two actions against her former employer, defendant-appellee Zapata Off-Shore Company (Zapata). The first, filed October 9, 1984, alleged a claim for sex discrimination under 42 U.S.C. Sec. 2000e et seq. (Title VII); and the other, filed August 6, 1987, alleged Jones Act (46 U.S.C.App. Sec. 688) and general maritime law claims for emotional distress. These suits were subsequently consolidated for trial simultaneously before the bench and a jury, respectively. Wilson suffered a take-nothing judgment in each suit and has raised issues on appeal challenging both judgments. Finding no reversible error, we affirm.

Facts and Proceedings Below

Wilson worked for Zapata between 1980 and 1984. During that time, she was quickly promoted through several positions to her final position as Motorhand A at more than double her starting salary. Wilson left Zapata in October 1984 because she was experiencing emotional problems, which she claims were caused by a hostile work environment aboard the rig. She was admitted to Riverside Hospital in Jackson, Mississippi on October 16, 1984, where she was treated for anxiety-related disorders. Following her discharge from the hospital in November 1984, Wilson continued to seek psychiatric counseling, and she did not hold a steady job for over two years.

Wilson alleges that she was "the object of sexual advances [by male co-employees] almost from the beginning of her employment on the rig." She claims that when she fended off these unwelcome advances, the men tried to use their authority to demote her or to see that she did not receive certain promotions. In March 1984, Wilson complained to the EEOC that she was discriminated against in promotion decisions and was subjected to sexual harassment. These allegations later formed the basis of her Title VII complaint. Meanwhile, on July 12, 1985, Wilson filed a Longshore and Harbor Workers' Compensation Act (LHWCA) ² claim for compensation against Zapata based on allegations similar to those described above. The administrative law judge rendered a decision on September 30, 1986, denying benefits because Wilson was a seaman and thus covered under the Jones Act, not the LHWCA. Wilson filed an appeal, which was dismissed on October 28, 1987. The LHWCA claim has not been pursued further.

While the appeal was pending in her LHWCA suit, Wilson filed suit against Zapata under the Jones Act, claiming that Zapata negligently permitted the male crew to create a hostile work environment that led to her eventual nervous breakdown. Because Jones Act suits are subject to a three-year statute of limitations, ³ the district court directed a verdict on all acts, omissions, and conduct occurring before August 6, 1984 (three years prior to the date the Jones Act suit was filed), and prohibited the jury from considering substantively any conduct before that date. The court did, however, permit evidence concerning prior conduct of Zapata's crew toward Wilson to be admitted for the purpose of showing Wilson's condition or propensity to injury. At trial, Wilson presented extensive testimony, spanning her entire career with Zapata, recounting numerous incidents that she claimed constituted harassment. In addition to the testimony describing incidents prior to the bar date, Wilson also testified that while on the job she was fondled and grabbed by two male co-employees within the limitations period. Zapata, on the other hand, denied that Wilson had been subjected to a hostile work environment. The men Wilson accused of sexually harassing her denied the incidents alleged, and explained their actions of seeking demotions or filing reports criticizing Wilson's work on the ground that Wilson had been promoted too quickly and was unable to adequately perform as Motorhand A. The Zapata witnesses admitted that Wilson might have been subjected to "heckling" or practical jokes, but asserted that the heckling was "good natured" and usual practice on board such rigs. This observation was specifically confirmed by Wilson's female co-employee roommate on board the rig, who further testified that Wilson herself frequently engaged in this sort of teasing. In closing argument, Zapata implied that Wilson's emotional breakdown was attributable to several factors outside the work environment. Wilson had been seeing a married man for some time, and gave birth to his child out of wedlock. Unsurprisingly, Wilson's relationship with this man was turbulent. In addition, Wilson had a history of gastrointestinal problems prior to her association with Zapata.

After hearing all of this evidence, the jury found that Wilson had not been injured within the limitations period. In accordance with the jury's findings, the district court entered a take-nothing judgment on the Jones Act claims on May 2, 1989. The Title VII claims were tried simultaneously to the bench, and the district court issued findings of fact and conclusions of law, which stated that Wilson had not been subjected to sexual harassment or discrimination. Accordingly, on July 19, 1989, the district court entered a take-nothing judgment on the Title VII claims. Wilson has raised issues on appeal relating to both judgments.

Discussion

I. Jones Act Claims

A. Sexual harassment under the Jones Act

Although Zapata did not raise this issue below or in its brief, Zapata has subsequently brought to this Court's attention ⁴ the recent Sixth Circuit opinion in Griggs v. National Railroad Passenger Corporation, Inc., 900 F.2d 74 (6th Cir.1990), which held that a worker's claim of sexual harassment is not cognizable under the Federal Employers' Liability Act (FELA). ⁵ Because the Jones Act incorporates by reference the FELA, ⁶ Zapata asserts that Wilson's claim is also barred, and urges this Court to adopt the Sixth Circuit's position.

The Griggs decision is apparently the only circuit court decision on this issue. In Griggs, the plaintiff alleged that her employer, Amtrak, had negligently permitted racial and sexual harassment to occur; as a result, she claimed to have suffered from, among other things, depression and migraine headaches. However, the plaintiff made only general allegations and did not detail the racial or sexual occurrences. Observing that "the facts alleged by the plaintiff are those of which Title VII claims are made," the court concluded that "plaintiff's claims are not cognizable under the FELA." Griggs, 900 F.2d at 75. The court reasoned that the FELA was designed not to create new substantive torts but to protect railway workers in federal court from common law torts. Id. The discrimination alleged by the plaintiff, however, created federal liability only because of Title VII; sexual harassment per se was not a tort at common law. Id. Moreover, allowing workers to bring sexual harassment claims under the FELA would "permit evasion of the detailed and specific enforcement scheme created by Title VII to vindicate statutorily proscribed employment discrimination." Id. Accordingly, the court affirmed summary judgment in favor of the defendant railroad. Id. at 77.

This Circuit has recognized that "[c]ourts have long allowed plaintiffs to recover for psychic and emotional harm in Federal Employers' Liability Act or Jones Act/maritime cases." Hagerty v. L & L Marine Services, Inc., 788 F.2d 315, 318 (5th Cir.), modified, 797 F.2d 256 (1986). ⁷ In particular, the Hagerty court cited the Ninth Circuit's opinion in Buell v. Atchison, Topeka & Santa Fe Railway Co., 771 F.2d 1320, 1324 (9th Cir.1985), aff'd in part, vacated in part, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), which recognized a claim for purely emotional injury resulting from the employer's negligent and intentional harassment, threats, and intimidation. This view arguably finds support in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), where the Supreme Court observed:

"The wording [of the FELA] was not restrictive as to the employees covered; the cause of the injury, except that it must constitute negligence attributable to the carrier; or the particular kind of injury resulting.

"To read into this all-inclusive wording a restriction as to the kinds of employees covered, the degree of negligence required, or the particular sorts of harms inflicted, would be contradictory to the wording, the remedial and humanitarian purpose, and the constant and established course of liberal construction of the Act followed by this Court." Urie, 69 S.Ct. at 1030.

A recent district court opinion considered but rejected application of Griggs to facts similar to those now before us. In Masiello v. Metro-North Commuter Railroad, 748 F.Supp. 199 (S.D.N.Y.1990), the court considered the Jones Act claims of a female engineer who claimed to have suffered emotional and physical injuries, including an ulcer, as a result of mental and physical harassment on the job. The court distinguished Griggs on the grounds that the plaintiff in Griggs had not made allegations of physical harassment; the court further found the reasoning in Griggs to be unpersuasive because the Sixth Circuit failed to follow the Urie directive to construe the FELA broadly and not limit...