Bustamento v. Tucker

• Decision Date: 19 October 1992
• Docket Number: No. 92-C-0523,92-C-0523
• Citation: 607 So.2d 532
• Parties: 60 Empl. Prac. Dec. P 41,819 Deretha BUSTAMENTO v. J.D. TUCKER, Jeff Hall, Marc Iott and Johnson Controls, Inc.
• Court: Louisiana Supreme Court

Page 532

607 So.2d 532

60 Empl. Prac. Dec. P 41,819

Deretha BUSTAMENTO v. J.D. TUCKER, Jeff Hall, Marc Iott and Johnson Controls,

Inc.

No. 92-C-0523.

Supreme Court of Louisiana.

Oct. 19, 1992.

Rehearing Denied Nov. 25, 1992.

John Milkovich, for applicant.

Joseph L. Shea, Jr., Philip E. Downer, III, Hargrove, Guyton, Ramey & Barlow, Jerald R. Harper, Cook, Yancey, King & Galloway, Scott C. Trotter, Youngdahl, Trotter, McGowan, O'Connor & Farris, Troy Bain, for respondents.

HALL, Justice.

Plaintiff filed this tort action for intentional infliction of emotional distress against her employer, supervisor, union representative, and co-worker in February 1988, alleging that her co-worker had subjected her to almost daily incidents of sexual harassment over a two-year period; that her supervisor and union representative had not only failed to curtail or stop such harassment, but also had condoned and encouraged it; and that her employer, despite its awareness of her complaints, had failed to take any responsible actions to eradicate such harassment. The district court sustained defendants' exception of prescription and dismissed plaintiff's suit. On plaintiff's appeal, the court of appeal, in an unpublished opinion, affirmed. 592 So.2d 514 (La.App. 2d Cir.1992). We granted plaintiff's application for writs, 598 So.2d 343 (La.1992), and now reverse in part and remand.

I.

The pleadings and evidence in the record disclose the following facts. In January 1985, Deretha Bustamento went to work as a janitor for Johnson Controls, Inc., a vehicle seat manufacturing company located in Shreveport, Louisiana. Shortly thereafter, J.D. Tucker, a forklift operator at the plant, began a pattern of harassing Ms. Bustamento during working hours at the workplace. Tucker's harassment allegedly persisted on an almost daily basis over a two year period, and was so severe that it often reduced Ms. Bustamento to tears and eventually rendered her emotionally distraught.

According to Ms. Bustamento, Tucker's harassment over the course of this two year span was both verbal and physical. Verbally, he repeatedly cursed at her; made improper sexual comments, innuendos and advances at her; invaded her privacy by questioning her regarding her marital affairs and sexual relationship with her husband; and threatened her with physical violence, including to rape her, to run her out of the plant, and to run over her with his forklift. Physically, he used his forklift to terrorize her: driving it at her, attempting to run over her with it, and pinning her against the walls of the plant and against stacks of pallets with it. On one occasion, he slapped her on the buttocks. Corroborating testimony for some of these incidents came from another co-worker, Brenda Fefel.

During the two year period, Ms. Bustamento complained to management at Johnson Controls and consulted several attorneys regarding the harassment. In 1985, Ms. Bustamento consulted an attorney who advised her of her rights and wrote a letter to Johnson Controls regarding the alleged sexual harassment. A memorandum dated February 16, 1986, documents Ms. Bustamento's complaints to her supervisor, Marc Iott. This memorandum reflects that on this occasion, Iott instructed Tucker "that he was not to curse at Deretha and should not do anything to make her feel threatened." Also, on this occasion, Iott warned Tucker that any further harassment would place his job in jeopardy. This memorandum further reflects that Tucker had a poor track record and had previously been warned.

The next complaint reflected in the record was made on February 27, 1987. On that date, Ms. Bustamento, accompanied by Ms. Fefel, went to Iott again complaining of Tucker's harassment. On this occasion, Iott informed her to immediately notify him of any further harassment. Ms. Fefel testified that on or about that same day she drove Ms. Bustamento, who was too upset to drive herself, to the office of attorney Laurie Lyons. Because of Ms. Bustamento's visibly shaken condition at the time of their consultation, Ms. Lyons referred Ms. Bustamento to a psychiatrist. According to Ms. Bustamento, the psychiatrist diagnosed her as being on the verge of a nervous breakdown.

The final complaint was made on March 3, 1987. On that date, Ms. Bustamento went into an emotional state over something Tucker allegedly did to her that morning at the New Plant. ¹ No one (not even Ms. Bustamento; her attorney, Ms. Lyons; or her co-worker, Ms. Fefel) could recall the details of this incident. Nonetheless, Ms. Bustamento responded to this incident by calling her attorney, Ms. Lyons, and requesting that Ms. Lyons come to the New Plant to meet with Iott. On that particular day, Ms. Lyons' workload was especially stacked up as she had just had a baby. Nonetheless, precipitated by plaintiff's frantic call, Ms. Lyons dropped what she was doing--something she testified that she rarely does for a client unless something important is going on--and went to the New Plant for the purpose of putting an end to the on-going harassment.

While the parties bitterly dispute what, if anything, occurred at the New Plant on March 3rd, the record reflects the following. Ms. Bustamento directly testified that Tucker cursed her at the New Plant and that she was certain it was something Tucker did that precipitated her call to Ms. Lyons. While Iott testified that Ms. Bustamento indicated to him in the March 3rd meeting that nothing occurred that morning, Ms. Lyons testified that she was certain that she would have recalled her client having made such a statement because she would have been angered to learn that her immediate presence was not required at the plant on that date. Iott conceded that during the March 3rd meeting, Ms. Lyons informed him that the harassment was on-going. Tucker testified that on the next day, March 4, 1987, Iott admonished him and warned him that if his wrongful conduct did not cease, he would be fired; this warning is documented in a memorandum of the same date. And, it is undisputed that after the March 3rd meeting, Tucker's conduct ceased.

II.

On February 29, 1988, Ms. Bustamento filed this suit, seeking to recover for the severe emotional distress she suffered as a result of Tucker's harassment, and naming as defendants Johnson Controls; Iott; Tucker; and Hall, a co-worker and the union representative. ² In response, defendants filed exceptions of prescription, contending that all of the complained of conduct occurred more than one year before plaintiff filed this suit. ³

After an evidentiary hearing, the district court maintained the exceptions, dismissing plaintiff's action. In its written reasons for judgment, the district court capsulized the relevant events occurring inside the prescriptive period and concluded that, for prescription purposes, the critical date was March 3, 1987.

Bustamento filed her original petition on February 29, 1988. She has stipulated that no tortious act occurred after March 3, 1987. Thus, if a tortious act was to have occurred within the year prior to filing suit, it must have occurred on March 1, 2 or 3, 1987. Bustamento did not even work on Saturday, February 28, 1987, or Sunday, March 1, 1987. While she worked a full day on March 2, 1987, Bustamento was only at the plant from 6:00 a.m. until Noon on March 3, 1987, that being the day Bustamento called her attorney, Laurie Lyons ("Lyons") (at 10:00 a.m.), to come to the plant. Bustamento further testified that there was only one day during the pertinent period on which she complains of Tucker's conduct, this being March 3, 1987, the date Lyons visited the plant.

The district court framed the issues as two-fold: first, whether a tort had occurred within the one-year prescriptive period; and second, if so, whether the continuing tort doctrine applies to the facts of this case. Based on plaintiff's testimony, the district court found that all the complained of tortious conduct occurred at the Old Plant, and thus outside the prescriptive period, with the possible exception of plaintiff's claim of a "cussing" on March 3rd at the New Plant. ⁴ The district court further found that "[w]hile the vile and profane acts complained of by plaintiff would certainly constitute a cause of action against one or more of the defendants, defendants have shown by a preponderance of the evidence that no harassment or acts of abuse took place within one year of filing suit[, that is, on March 3]." Based on this conclusion and its belief that a prerequisite for invoking the continuing tort doctrine is the occurrence of at least one act of tortious conduct within the year immediately preceding filing suit, the district court pretermitted consideration of the second issue of whether the continuing tort doctrine applies.

The court of appeal affirmed in an unpublished opinion. The court began by separately addressing the issue of whether plaintiff's claim against the union representative, Hall, was prescribed. Answering this question in the affirmative, the court reasoned that "[n]o witness testified of any tortious conduct by Mr. Hall within the one-year period prior to the filing of the plaintiff's suit. Therefore, the claims against defendant Hall are clearly prescribed, and the trial court properly dismissed him from the suit." We agree and affirm this finding. ⁵

As to the remaining defendants, the court of appeal framed the issue as whether the district court had committed manifest error in resolving the conflicting testimony regarding the March 3rd incident to find that no tort occurred on that date. Answering this question in the negative, the court concluded that the record supported the district court's finding that no tort occurred on that date. The court also concluded that even assuming, as suggested by the district court, that a "cussing" occurred on March 3rd, it would not necessarily be actionable under White v. Monsanto Co., 585 So.2d 1205 (La.1991); the...