Benavides v. Moore

• Citation: 848 S.W.2d 190
• Decision Date: 10 December 1992
• Docket Number: No. 13-91-502-CV,13-91-502-CV
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 1094, 62 Empl. Prac. Dec. P 42,497 Charlene BENAVIDES, Appellant, v. Vernon MOORE, et al., Appellees.
• Court: Court of Appeals of Texas

Page 190

848 S.W.2d 190

68 Fair Empl.Prac.Cas. (BNA) 1094,

62 Empl. Prac. Dec. P 42,497

Charlene BENAVIDES, Appellant, v. Vernon MOORE, et al., Appellees.

No. 13-91-502-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 10, 1992.

Opinion Denying Motions For

Rehearing Feb. 11, 1993.

Rehearing Overruled March 11, 1993.

James A. Herrmann, Harlingen, Joe A. Cisneros, McAllen, for appellant.

J.W. Dyer, Chris A. Brisack, Jarvis & Kittleman, McAllen, Roger W. Hughes, Jim Denison, Adams & Graham, Harlingen, Sandra Sterba-Boatwright, M.W. Meredith, Jr., Meredith, Donnell, & Abernethy, Corpus Christi, for appellees.

Before FEDERICO G. HINOJOSA, Jr., KENNEDY and SEERDEN, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

This is an appeal from a summary judgment entered against Charlene Benavides who sued Lonnie McCown, Vernon Moore and the Texas Farm Bureau Insurance Companies (TFBIC) for sexual harassment, retaliatory discharge, and intentional infliction of emotional distress. Appellant challenges the summary judgment by four points of error. We affirm the trial court's summary judgment that appellant has no claim for intentional infliction of emotional distress. We reverse the remainder of the trial court's judgment and remand the case to the trial court for a trial on the merits on appellant's claims of sexual harassment and retaliatory discharge.

Appellant worked as an agent of TFBIC in Hidalgo County. Appellee McCown was the manager of the Hidalgo County Farm Bureau Insurance Company office, and appellee Moore was the TFBIC district sales manager for the region which included Hidalgo County. Moore fired appellant on October 31, 1989. Appellant filed suit on July 31, 1990, naming Moore, McCown, and TFBIC as defendants. On September 11, 1990, the trial court dismissed the action with prejudice, finding that the Texas Commission on Human Rights had not released jurisdiction. On October 10, 1990, the trial court set aside the dismissal order and abated the cause until the Commission entered its final order.

TFBIC moved for summary judgment on May 1, 1991. TFBIC alleged 1) that appellant and McCown were independent contractors and not employees of TFBIC, 2) that the acts appellant alleged were not relevant to her termination and did not rise to the level of "legal sexual harassment," and 3) that the facts did not support a cause of intentional infliction of emotional distress. On June 6, 1991, McCown moved for summary judgment on the same grounds as TFBIC and on the additional ground that appellant failed to timely assert violations of the Texas Human Rights Act. TEX.REV.CIV.STAT.ANN. art. 5221k (Vernon 1987 & Supp.1992). McCown amended his motion on June 7, 1991. ¹ On June 19, 1991, Moore moved for summary judgment on the same grounds as McCown. The trial court heard all motions for summary judgment on June 28, 1991, and on July 9, 1991, entered summary judgment in favor of Moore, McCown and TFBIC. Benavides perfected appeal to this Court on August 7, 1991.

In order to sustain a summary judgment, we must determine that the pleadings and summary judgment evidence establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. McFadden v. American United Life Ins. Co., 658 S.W.2d 147, 148 (Tex.1983). We accept all evidence favorable to the non-movant as true, indulge the non-movant with every favorable reasonable inference, and resolve any doubt in the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985). When a defendant moves for summary judgment on several theories and the trial court enters summary judgment without specifying the ground relied upon, we affirm the summary judgment if any one of the theories advanced is meritorious. Martinez v. Corpus Christi Area Teachers Credit Union, 758 S.W.2d 946, 950 (Tex.App.--Corpus Christi 1988, writ denied).

By her third point of error, appellant complains that the trial court erred in granting appellees' motions for summary judgment on the ground that appellant was not an employee within the meaning of the Texas Human Rights Act and thus did not state a cause of action. Appellant argues that her employment status is the subject of a factual dispute.

According to the Texas Human Rights Act, the term " 'employee' means an individual employed by an employer." TEX.REV.CIV.STAT.ANN. art. 5221k, § 2.01(6). An "employer" is "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year and any agent of that person." TEX.REV.CIV.STAT.ANN. art. 5221k, § 2.01(7)(A). A " 'Person' means one or more individuals or an association, corporation, joint-stock company, labor union, legal representative, mutual company, partnership, receiver, trust, trustee, trustee in bankruptcy, unincorporated organization, the state, or a political subdivision or agency of the state." TEX.REV.CIV.STAT.ANN. art. 5221k, § 2.01(12).

The Legislature modeled the Texas Human Rights Act on federal law with the purpose of executing the policies embodied in Title VII of the federal Civil Rights Act of 1964, codified as 42 U.S.C. § 2000e, et seq. TEX.REV.CIV.STAT.ANN. art. 5221k § 1.02(1) (Vernon Supp.1992). Consequently, when Texas case law fails to address questions raised under the statute, we look to federal case law for guidance. Cf. Syndex Corp. v. Dean, 820 S.W.2d 869, 871 (Tex.App.--Austin 1991, writ denied).

Title VII protects employees, not independent contractors. See Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270, 272 (5th Cir.1988). Federal courts use a hybrid "economic realities/right of control" test to determine whether a person is an employee or an independent contractor. Mares v. Marsh, 777 F.2d 1066, 1067 (5th Cir.1985).

The economic realities/common law control test considers the economic realities of the work relationship, and the extent to which the one for whom the work is being done has the right to control the details and means by which the work is to be performed, with emphasis on this latter control factor.

Diggs, 847 F.2d at 272. The courts also consider the following:

1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; 2) the skill required in the particular occupation; 3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; 4) the length of time during which the individual has worked; 5) the method of payment, whether by time or by the job; 6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; 7) whether annual leave is afforded; 8) whether the work is an integral part of the business of the "employer," 9) whether the worker accumulates retirement benefits; 10) whether the "employer" pays social security taxes; and 11) the intention of the parties.

Id. (quoting Spirides v. Reinhardt, 613 F.2d 826, 832 (D.C.Cir.1979)).

We find that a material fact dispute exists concerning appellant's employment status. The summary judgment evidence shows that TFBIC will not negotiate contract terms with prospective agents, that prospective agents must sign a standard contract prepared by TFBIC, that agents may only sell TFBIC insurance, that agents are governed by TFBIC regulations, that agents must attend TFBIC meetings, that agents must perform customer services consistent with the guidelines and instructions contained in the TFBIC Agent Manual, that agents must be employed by TFBIC for ten years before they are entitled to retain renewal premiums upon the agent's termination, that agents are limited in their ability to incur indebtedness, that TFBIC provides secretarial and support services for agents, that agents are required to keep office hours, and that selling insurance is an integral part of TFBIC's business. While the contract states that TFBIC agents are "independent contractors," the facts establish a dispute under the economic realities/right of control test. Summary judgment is, therefore, inappropriate. We sustain appellant's third point of error.

By her first point of error, appellant complains that the trial court erred in granting appellees' motions for summary judgment on the ground that she did not state a claim for sexual harassment and retaliatory discharge under the Texas Human Rights Act.

It is unlawful, under the Act, for an employer to discharge an individual or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin. TEX.REV.CIV.STAT.ANN. art. 5221k, § 5.01(1) (Vernon Supp.1992). It is also unlawful for an employer to retaliate or discriminate against a person who has opposed a discriminatory practice or who has made or filed a charge, filed a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act. TEX.REV.CIV.STAT.ANN. art. 5221k, § 5.05(a)(1) (Vernon 1987).

Appellant's petition alleged that she was the only female sales agent in the Pharr office, that her sales record was average to good and "better than some of the male agents who are still employed at the Weslaco agency," that McCown was her supervisor, that he made sexual advances which she rejected, that he became verbally abusive to her, that he treated no male agents in the same manner, that she complained to McCown and Moore, that Moore responded by rebuking her, and that she was terminated by Moore without reason.

Appellant's response to appellees' motions for summary judgment included her deposition testimony that McCown had made a sexual advance toward her and that she had been told that she would be fired if her boyfriend...