City of Houston v. Fletcher

• Citation: 166 S.W.3d 479
• Decision Date: 09 June 2005
• Docket Number: No. 11-03-00200-CV.,11-03-00200-CV.
• Parties: CITY OF HOUSTON and Susan McMillian, in her individual capacity, Appellants, v. Juanita FLETCHER, Appellee.
• Court: Supreme Court of Texas

Page 479

166 S.W.3d 479

CITY OF HOUSTON and Susan McMillian, in her individual capacity, Appellants, v. Juanita FLETCHER, Appellee.

No. 11-03-00200-CV.

Court of Appeals of Texas, Eastland.

June 9, 2005.

Rehearing Overruled July 28, 2005.

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Eliot P. Tucker, Roy L. Barnes, Tucker/Vaughan, Donald J. Fleming, Senior Asst. City Atty., Houston, for appellants.

Joyce Keating, Law Firm of Joyce A. Keating, Houston, for appellee.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

Opinion

TERRY McCALL, Justice.

Juanita Fletcher brought this action against her former employer, the City of Houston, and her former supervisor, Susan McMillian. Fletcher asserted age discrimination claims against the City under the Texas Commission on Human Rights Act (TCHRA). TEX. LAB. CODE ANN. § 21.001 et seq. (Vernon 1996 & Supp. 2004-2005). She alleged an intentional infliction of emotional distress claim against McMillian. The jury found (1) that the City had subjected Fletcher to a hostile work environment based upon her age, (2) that the City had discriminated against Fletcher based upon her age, and (3) that the City had terminated Fletcher based upon her age. With respect to Fletcher's claims against the City, the jury awarded $90,000.00 in past lost wages, $69,000.00 in diminishment in future wages, and $100,000.00 in past mental anguish damages. The jury also awarded attorney's fees. The jury also found in Fletcher's favor on her intentional infliction of emotional distress claim against McMillian. On the intentional infliction of emotional distress claim, the jury awarded $100,000.00 in compensatory damages and $64,000.00 in exemplary damages. The trial court entered judgment in accordance with the jury's verdict. The City and McMillian appeal the judgment. For the reasons stated, we modify the trial court's judgment against the City and affirm the judgment as modified, and we reverse the trial court's judgment against McMillian and render judgment that Fletcher take nothing on her claims against McMillian.

Issues Presented

The City presents five issues for review. The City argues (1) that the trial court erred by submitting an improper instruction to the jury on Fletcher's hostile work environment claim, (2) that the evidence was legally and factually insufficient to support the jury's finding that the City subjected Fletcher to a hostile work environment based on age, (3) that the evidence was legally and factually insufficient to support the jury's finding that the City subjected Fletcher to discriminatory treatment based on age, (4) that the evidence was legally and factually insufficient to support the jury's finding that Fletcher's age was a motivating factor in the City's decision to discharge her, and (5) that the trial court erred in awarding an improper amount of prejudgment interest and postjudgment interest in the judgment.

McMillian presents six issues for review. McMillian argues (1) that the trial court erred in determining that she engaged in conduct that would support a claim for intentional infliction of emotional distress, (2) that the evidence was legally and factually insufficient to support a finding that she committed extreme and outrageous conduct, (3) that the evidence was legally and factually insufficient to support a finding that Fletcher suffered severe emotional distress, (4) that Fletcher may not pursue a claim for intentional infliction of emotional distress — which is a "gap-filler" remedy — because she has an adequate remedy for age discrimination, (5) that the trial court erred in awarding Fletcher a double recovery by awarding Fletcher damages on her age discrimination claim and her intentional infliction of emotional distress claim, and (6) that the trial court erred in awarding exemplary damages against her.

The Evidence

Fletcher was employed by the City from September 3, 1996, until May 30, 1997. She was an Administrative Assistant III in the City's Department of Public Works & Engineering, Traffic Management & Maintenance Division. She was 53 years old when she began her employment with the City. Fletcher's supervisor was McMillian. McMillian was 48 years old when Fletcher began her employment with the City. The City terminated Fletcher for the stated reasons of unsatisfactory service during her probationary period and insubordination.

Testimony of Fletcher

Fletcher said that, during her employment with the City, McMillian called her "incompetent," a "stupid old woman," an "old woman," and "senile." She said that McMillian verbally abused her and screamed and yelled at her. McMillian called her a "stupid old woman" several times. Most of McMillian's comments were behind closed doors, but McMillian would come to her desk and "ream" her out and yell at her. McMillian told her that the younger employees were much better than she was. McMillian treated younger employees better than she treated older employees. On occasion, other City employees were present when McMillian yelled at her or called her "stupid" or "stupid old woman." Fletcher's "day-to-day dealings" with McMillian included McMillian's "litany" that "you were stupid, you were senile, you were old, you were incompetent." McMillian was demeaning and rude, treated Fletcher like she was nothing, and treated Fletcher that way every day.

McMillian would not allow Fletcher to do a number of the functions listed on the job description for her Administrative Assistant III job. Fletcher learned very early on that the actual job was not going to be what she thought it would be. McMillian basically told her that she was a clerk. McMillian did not give her access to information that would have permitted her to do the job. McMillian denied her training that was necessary to do her job. McMillian would not allow her to attend city council meetings or neighborhood traffic meetings. Without access to this type of information, she could not obtain information necessary to do her job. McMillian told her that she was totally incompetent and that training would not do any good. Angelo John Santopolo and Mary Nola Miles — also employees over 40 years of age — were not allowed to do the jobs that they were hired to perform.

McMillian gave Fletcher substandard ratings in her seven-month Employee Performance Evaluation (EPE). Fletcher told McMillian that she did not have any training and that the EPE did not bear any relevance to the job that she was hired to do. McMillian said that there was nothing Fletcher could do to improve her performance. Fletcher was frustrated and worried about the evaluation. McMillian permitted her to look for another position with the City. McMillian's treatment of Fletcher did not change after the performance review. Fletcher was frightened and upset and did not know whether she was going to be able to keep her job.

On May 14, 1997, McMillian approached Fletcher and asked her if she would come to an EPE meeting. By then, Fletcher had contacted the EEOC¹ and an attorney because of the discriminatory environment at work. Fletcher wanted to call her attorney before going to the EPE. She told McMillian that she could attend the meeting after making a phone call or two. McMillian asked her whether she was being insubordinate, and Fletcher responded that she was not. McMillian let her make the call only after verbally abusing her and screaming at her. After making the call, she told McMillian that she was ready to go to the EPE. McMillian told her that it had been cancelled.

On that same day, McMillian told Fletcher that she was not allowed to receive any phone calls at work. Earlier, Fletcher had told McMillian that she had a daughter who was ill at home and that her daughter might need to contact her. McMillian told Fletcher that Miles could take Fletcher's calls and let Fletcher know about them. After Fletcher learned that she had not received two messages from her daughter in a timely manner, she broke down and started crying. Fletcher got permission from McMillian to go home. When she got home, she learned that her daughter had passed out that morning and, after coming to, had tried to call her at work. Fletcher testified that her daughter could have died that morning.

Fletcher went to work the next day. Shortly after arriving at work, she was placed on administrative leave. Fletcher submitted her resignation at the end of the month. McMillian and two men came to her house. She would not let them in because she was afraid of them. The City terminated Fletcher's employment before her resignation became effective.

Fletcher considered consulting a physician or a psychologist because of the stressful situation at work. She went to an appointment with her daughter's therapist, but she could not afford formal counseling. She talked to her pastor about the emotional problems that she was having as a result of McMillian's conduct. Fletcher was depressed, could not eat or sleep, had violent migraines, had asthma attacks, and was constantly coughing.

Testimony of Santopolo, Ukaegbu, Husain, Harris, Cox, and Van Manen

Santopolo was a former City employee who had worked with Fletcher. Fletcher was being ordered to do a very different job than that of her job title. Fletcher basically just sat at her desk and did nothing more than make copies. Fletcher was not allowed to answer the telephone. Santopolo heard McMillian yell at Fletcher, call her a "stupid old woman," and tell her that she was "incompetent." He recalled McMillian calling Fletcher a "stupid old woman" two or three times. Every few days, Fletcher would come into his office crying. Santopolo and others listened to her and consoled her.

Samson Ukaegbu worked for the City from June 1996 until June 1998. Ukaegbu testified that Fletcher was the division secretary. Fletcher came into his office once or twice crying. Fletcher told him that McMillian had talked to her in an unprofessional manner....