Borg-Warner Protective Services Corp. v. Flores

• Decision Date: 04 September 1997
• Docket Number: BORG-WARNER,No. 13-96-028-CV,13-96-028-CV
• Citation: Borg-Warner Protective Services Corp. v. Flores, 955 S.W.2d 861 (Tex. App. 1997)
• Parties: PROTECTIVE SERVICES CORPORATION a/k/a Borg-Warner Physical Security Corporation d/b/a Wells Fargo Guard Services, Appellant, v. Amelia FLORES, Appellee.
• Court: Texas Court of Appeals

Page 861

955 S.W.2d 861

BORG-WARNER PROTECTIVE SERVICES CORPORATION a/k/a Borg-Warner Physical Security Corporation d/b/a Wells Fargo Guard Services, Appellant, v.Amelia FLORES, Appellee.

No. 13-96-028-CV.

Court of Appeals of Texas Corpus Christi.

Sept. 4, 1997.

Rehearing Overruled Nov. 13, 1997.

Joy M. Soloway, Stephen W. Smith, Andrew L. Pickens, Fulbright & Jaworski, Houston, Ofelia De Los Santos, Edinburg, for Appellant.

David H. Jones, Pharr, Aaron Pena, Jr., Kathleen Henley, Aaron Pena & Associates, Edinburg, for Appellee.

Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.

OPINION

CHAVEZ, Justice.

Borg-Warner Protective Services Corporation a/k/a Borg-Warner Physical Security Corporation d/b/a Wells Fargo Guard Services ("Borg-Warner") appeals the rendition of judgment in favor of Amelia Flores, a former Borg-Warner employee, on numerous common law and statutory claims for sexual harassment and related intentional torts.We will affirm.

Facts

Borg-Warner is among this country's largest security firms.¹ Its McAllen, Texas, office is under the supervisory jurisdiction of its San Antonio, Texas, office.The McAllen field office, which, at the time of the events underlying this case employed up to 100 (or more--testimony was varied) security guards, was run by two Borg-Warner employees--operations manager Santiago "Jimmy" Gonzales, and security consultant Ruford "Rob" Richards.Essentially, Gonzales directly supervised the guards, and Richards was the firm's salesman.Gonzales and Richards had virtual autonomy in the day-to-day management of the McAllen office, as supervisory personnel from San Antonio would only visit the McAllen office between two and four times per year.

Prior to being hired to oversee all security guards in Borg-Warner's McAllen office, Gonzales had been employed as a school bus driver, janitor, farm field worker and a furniture delivery driver.Gonzales was an allegedly habitual sexual harasser vis-a-vis the female guards whom he supervised at Borg-Warner.Testimony concerning his misdeeds included:

asking guards (including married ones) for dates and sexual favors, sometimes offering work-related incentives to submission;

fondling the breasts of female employees;

insisting that he be present in the bathroom to observe the giving of a female applicant's urine sample for the company's pre-employment drug test;

calling and visiting, unannounced and often intoxicated, female guards at their homes;

surreptitiously entering the home of appellee, a female guard who had spurned him; and

raping appellee during a business outing, in the course of which transmitting gonorrhea to her.

Although Gonzales's misconduct was reported to Borg-Warner's management by Gonzales's female targets on several occasions, the record indicates that Gonzales was never reprimanded by his managers.Rather, it appears that Borg-Warner ignored and/or discredited each such report.The record indicates that Borg-Warner even requested that one female complainant reduce her grievance to a notarized written statement, as a precondition to its acceptance by management; having complied with Borg-Warner's request, her complaint was nevertheless apparently ignored.

Amelia Flores was hired by Borg-Warner in July, 1993, to be a security guard out of the McAllen office.The record reflects that, from the outset of her employment, she was a target of Gonzales's sexual advances.The record also reflects that, at the time Flores commenced employment with Borg-Warner, Gonzales had seen his superiors ignore and disbelieve numerous reports that he had sexually harassed female employees for about a year.

Incidents of Gonzales's inappropriate conduct toward appellee, set forth in the record, include the following: When Gonzales initially went to get Flores a uniform, he tried to kiss her and pin her to a desk in the office; after she started working, Gonzales began calling her at home; Gonzales promised Flores that she would receive favors at work if she would consent to sex with him; on one occasion, an apparently intoxicated Gonzales used a business pretext to appear at Flores's home, whereupon he tried to unfasten his trousers and pin her down; on another occasion, Gonzales appeared at Flores's home and tried to forcibly remove her skirt (this incident was admitted by Gonzales to his supervisor, Mike McEwen).

Finally, one afternoon in mid-August 1993, Flores paged Gonzales from her home to report an attempted auto theft which had been related to her by another Borg-Warner guard.Gonzales arrived at Flores's home, instructing her to accompany him to the crime scene in Gonzales's vehicle for the ostensible purpose of training Flores.En route to the attempted theft investigation, Gonzales took a detour down a dirt road, parked his car, and raped Flores, causing her to contract gonorrhea.After the rape, Gonzales returned Flores to her home, where she showered and "just kept crying and crying."

Flores testified that she attempted to report the rape--to no avail--to BorgWarner, stating that she"tried calling the office, but Jimmy [Gonzales] was--was the one always answering the phone.So, I couldn't get to nobody [sic] higher."Flores attempted to call Borg-Warner's office, in the ostensible hopes of speaking to a managerial employee other than Gonzales, "several times."The following testimony was elicited on the direct examination of Flores:

Q: Did Jimmy [Gonzales] ever tell you who [sic] to complain to?

A: To him.

Q: Did he say to complain to him alone?

A: To him alone.

Q: And why didn't you want to complain to Jimmy [Gonzales] about the rape?

A: Because he was the one that committed it, how could I?

Flores was initially reluctant to report the rape to Borg-Warner, due to her observation of the company's response to the sexual harassment reported by fellow guard Patty Garcia.² On September 7, 1993, Flores finally informed other persons--a co-worker and a Borg-Warner client--of the harassment and rape.Flores testified that she did so "[b]ecause I needed to let it go out.I had it all inside of me."

The client contacted Richards, to relate Flores's revelation.Richards and Flores then met, and Flores reported the rape directly to Richards.Richards asked Flores to remain quiet about the matter.Borg-Warner offered Flores a few days off to compose herself.Declining the offer, Flores resigned.

Richards then contacted McEwen in San Antonio, the primary person to whom reports of sexual harassment were to be given.Richards also began keeping a journal of events.Gonzales was placed on "administrative leave" practically immediately, but it is unclear from the record precisely when his employment with Borg-Warner was terminated.At some point on September 7, 1993, some one from the San Antonio office of Borg-Warner called Flores to relate that Gonzales had been placed on "administrative leave"; however, Flores testified that she did not learn of Gonzales's actual termination until March 1995.

Subsequent to Flores's report of the rape, Gonzales continued to harass Flores, in an apparent attempt to silence her, even leaving at least one message on her telephone answering machine.³

Flores sued Borg-Warner and Gonzales on numerous theories, asserting common law causes of action as well as claims under Chapter 21 of the Texas Labor Code.⁴BorgWarner claimed that Gonzales had been upbraided for violation of a supposed non-fraternization policy, implying that sexual relations among Flores and Gonzales were consensual.⁵Borg-Warner and Gonzales entered into a written contract whereby Gonzales would be provided legal representation, free of charge, as long as he did not contradict the legal positions taken by Borg-Warner.

Appellee's evidence against Borg-Warner focused on the following areas:

Borg-Warner's investigation once Flores complained of harassment and rape;

the company's remedial measures to prevent further incidents of sexual harassment;

the existence of a sexually hostile work environment;

the existence of sexual harassment safeguards to ensure the safety of female guards;

whether Borg-Warner was negligent in hiring and retaining Gonzales; and the corporation's overall sexual harassment policy.

Expert testimony was also received that Flores suffered from "rape trauma syndrome" as a consequence of the rape.

Representatives of Borg-Warner who testified at trial repeatedly contradicted themselves, each other and their prior deposition testimony.For example, Walter Lepp, a human resources manager for Borg-Warner, testified that Gonzales was fired for violating a non-fraternization policy, although he stated that, hypothetically, the policy would not apply to two Borg-Warner employees who are living together.

The jury awarded actual damages as follows:⁶

Having determined liability, the trial progressed to the punitive damages phase.

In argument to the jury at the punitive damages stage, counsel for Flores stated:

... I want you to pay particular attention to the size of the award needed to deter similar wrongs in the future.This again goes back to the idea that the punishment figure has to be proportionate to different people.I can't ask you to punish Mr. Gonzales $4 million.That wouldn't be fair to him.The average person has a net worth of $35,000 the professor [i.e., plaintiff's economics expert] says.I would submit to you--and, Amelia [Flores], please forgive me--that Mr. Gonzales's punishment should be $3,500 and I am going to tell you why.

Some of you may say ... that's not really appropriate for what he did and I agree.It is not appropriate.But I want to be consistent in my--in my recommendation to you that the punishment should be the same for him as it should be for the company.Mr. Gonzales is a little different than the corporation.Mr. Gonzales will pay in other ways.I believe us to be compassionate people.Because of your verdict, whenever Mr. Gonzales goes out to look for...