Cortes v. Maxus Exploration Co.
| Citation | 977 F.2d 195 |
| Decision Date | 18 November 1992 |
| Docket Number | No. 91-2536,91-2536 |
| Parties | 60 Fair Empl.Prac.Cas. (BNA) 547, 60 Empl. Prac. Dec. P 41,889, 61 USLW 2375, 37 Fed. R. Evid. Serv. 405 Tiffany CORTES, Plaintiff-Appellee, v. MAXUS EXPLORATION COMPANY, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Michael V. Powell, Cynthia Keely Timms, Locke, Purnell, Rain, Harrell, Dallas, Tex., for defendant-appellant.
John R. Craddock, Dennis Herlong, Glickman & Barnett, Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before JONES and WIENER, Circuit Judges and LITTLE, District Judge. *
Tiffany Cortes brought suit against her former employer, Maxus Exploration Company (formerly known as Diamond Shamrock Exploration Company), asserting a claim of sexual harassment under Title VII and a claim for duress under Texas law. The district court, sitting with an advisory jury, found that Cortes had been sexually harassed and constructively discharged and awarded her back pay damages of $97,857.70 plus interest and attorney's fees. The jury, which was advisory as to the Title VII claim only, found that Maxus also had committed the tort of duress with malice and awarded $20,000 actual damages and $30,000 punitive damages. Cortes elected to have judgment entered on the Title VII claim. Maxus asserts on appeal that the district court's findings of sexual harassment and constructive discharge are erroneous as a matter of law or clearly erroneous, that the district court erroneously imposed liability based on time-barred acts of sexual harassment, and that the district court's award of back pay damages is clearly erroneous or erroneous as a matter of law. It also challenges the district court's decision to exclude as evidence the EEOC's determination that Cortes' claim was wanting in substance and did not merit further action by that agency. Further, Maxus contends that the district court erred in denying Maxus' motion to dismiss and its motion for directed verdict dismissing the duress claim. Finally, Maxus suggests that the jury's finding of duress and award of damages for duress are not supported by the evidence. We affirm the district court's judgment in all respects. The judgment does not include recovery for the duress claim. Consequently, we do not address Maxus' challenge to the jury's verdict and award on the duress claim.
Maxus hired Cortes in 1980 as a drafting technician in Houston, Texas. Shortly thereafter, Cortes' immediate supervisor, Edgar Acero, began propositioning Cortes seeking sexual favors. Acero repeatedly asked Cortes to have sexual relations with him, sometimes threatening to demote or fire her if she refused. He made lewd remarks about her body, told her vulgar jokes on a daily basis, showed her pornographic photographs, asked her to come to his house for "training" after work hours bragged about the size of his penis, and frequently brushed up against her legs and breasts. Cortes complained to management and was promised an investigation. After this complaint, Acero demoted Cortes from Assistant Supervisor and replaced her with a person of less experience. When no investigation occurred, Cortes complained a second time. The Human Resources manager told Cortes that he did not believe her and that she was exposing herself to liability for slander. Cortes then went immediately to the Senior Manager and was again promised an investigation. When Cortes returned to her office, Acero docked her pay for that day. Acero then began requiring that Cortes ask his permission to leave the office, even to go to the restroom. Whenever she asked to go to the restroom, Acero would follow her and wait in the hall until she returned. Finally, in August 1982, Cortes was transferred to the petroleum engineering department. Acero was never investigated or disciplined.
In 1983, Cortes was assigned to work under Acero temporarily. Although he was no longer Cortes' supervisor, Acero was authorized to bring work to Cortes, which gave him the opportunity to renew his sexual advances and offensive jokes. In May 1985, Cortes complained to Maxus' new Human Resources manager, Ed Morgan. He told her to imagine that Acero's advances and jokes were nothing more than little pink elephants and that when he snapped his fingers, she should forget them. When Cortes again complained to Morgan, he began snapping his fingers.
In March 1986, Maxus reorganized its Houston operations and substantially reduced its labor force. Maxus informed Cortes that she was being returned to the drafting department where Acero would be her immediate supervisor. Within six days she had to elect the transfer or resign. On 18 March 1986, the date on which she was to start working under Acero, Cortes telephoned Ed Morgan and recorded the conversations on tape. She told Morgan that she was afraid to work for Acero because he had continued to harass her sexually. Morgan replied that Cortes' problem with Acero was not Maxus' problem. He said that there was nothing he could do. Her request for additional time to decide her employment future was denied. She asked if she could be laid off with the other employees so that she could collect benefits until she could find another job. Morgan told her that she could not be laid off because Maxus had a job for her. If she could not accept the position, then it would be considered a resignation, not a lay off. When pushed to give a definite answer, Cortes told Morgan that although she needed and wanted the work, she could not subject herself to Acero another time.
Cortes immediately filed an EEOC claim of discrimination alleging sexual harassment. More than one year later, the EEOC issued a determination and right to sue letter, concluding that no reasonable cause existed to believe that unlawful discrimination had occurred.
The appellant Maxus first challenges the district court's findings that Maxus sexually harassed and constructively discharged Cortes in March 1986 when it informed her that she had been transferred to the drafting department under the immediate supervision of Acero.
We review the district court's finding of sexual harassment under the clearly erroneous standard. Wilson v. Zapata Offshore Co., 939 F.2d 260, 273 (5th Cir.1991). Maxus argues that the finding of sexual harassment is clearly erroneous because Maxus' 1986 act of placing Cortes under the supervision of Acero was not itself of a sexual nature--because Ed Morgan, in informing Cortes that she must accept the transfer or resign, made no sexual advances or requests for sexual favors. We disagree. "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). In this circuit, a claim for hostile work environment requires the plaintiff to prove five factors: (1) membership in a protected group; (2) subjection to unprovoked sexual advances, or request for sexual favors, or other verbal or physical conduct of a sexual nature; (3) but for her sex, the plaintiff would not have been the object of harassment; (4) the harassment was sufficiently pervasive to alter the conditions of employment and create an abusive or hostile working environment; (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. See Jones v. Flagship Int'l, 793 F.2d 714, 710-20 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). Even in light of the strong evidence that Acero had sexually harassed Cortes when she was under his supervision and that when given the opportunity, he had continued to do so even after she was transferred out of his department, Maxus transferred Cortes to this sexually abusive environment. When Cortes expressed her fears about accepting the transfer, Maxus refused to take any remedial measures to protect her. 1 The district court found that these acts created an abusive work environment for Cortes and subjected her to unwelcome sexual advances, requests for sexual favors, and other unprovoked verbal and physical conduct of a sexual nature. We find no clear error in the district court's conclusion that these acts amounted to sexual harassment within the meaning of Title VII.
Maxus further asserts, however, that the finding of sexual harassment is clearly erroneous because the predicate acts of 1980-82 did not occur within the Title VII statute of limitations period. Apparently, it is the appellant's contention that the district court imposed liability for the sexual harassment occurring in 1980-82, not the appellant's 1986 act of transferring Cortes to a sexually abusive environment. This argument is unfounded. Although much of the evidence presented at trial regarded the harassment that occurred in 1980-82, the district court's written findings of fact and conclusions of law state unequivocally that the finding of sexual harassment was based on the 1986 actions, not the 1980-82 harassment. Moreover, the district court properly considered evidence of the 1980-82 fear-producing actions in determining whether the 1986 actions amounted to sexual harassment and constructive discharge. See Downey v. Southern Natural Gas Co., 649 F.2d 302, 305 (5th Cir.), reh'g denied, 656 F.2d 704 (5th Cir.1981) (); Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527 540 (5th Cir.), reh'g denied, 618 F.2d 1389 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981) (); Crawford v. Western Elec. Co., 614 F.2d 1300, 1314 (5th Cir.), reh'g denied, 620 F.2d 300 (5th Cir.1980) (...
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