Federal Exp. Corp. v. Dutschmann

• Decision Date: 31 August 1992
• Docket Number: No. 10-90-166-CV,10-90-166-CV
• Citation: 838 S.W.2d 804
• Parties: FEDERAL EXPRESS CORPORATION, Appellant, v. Marcie DUTSCHMANN, Appellee.
• Court: Texas Court of Appeals

Page 804

838 S.W.2d 804

FEDERAL EXPRESS CORPORATION, Appellant, v. Marcie DUTSCHMANN, Appellee.

No. 10-90-166-CV.

Court of Appeals of Texas,

Waco.

Aug. 31, 1992.

Rehearing Denied Oct. 21, 1992.

Phillip R. Jones and Jennifer A. Youpa, Jenkens & Gilchrist, Dallas, Connie R. Lewis, Federal Express Corp., Memphis, for appellant.

Jon R. Ker, Hewitt, for appellee.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

Federal Express Corporation appeals an $89,000 judgment entered on a jury verdict in favor of Marcie Dutschmann, a former Federal Express employee. The jury found that Federal Express had terminated Dutschmann in retaliation for making complaints of sexual harassment by other Federal Express employees. The jury also found that Federal Express had agreed to provide her a Guaranteed Fair Treatment Procedure (GFTP) following her termination and that it failed to exercise good faith in conducting the GFTP. Although Federal Express attempted to show that Dutschmann had falsified records and was thus discharged, the jury was convinced otherwise. The judgment awarded Dutschmann $20,000 actual damages, $50,000 exemplary damages, $19,000 attorney's fees, pre-judgment and post-judgment interest, and attorney's fees in the event of an appeal. We affirm the judgment.

Federal Express asserts five points on appeal: (1) the court erred in submitting and entering judgment on question one inquiring about retaliatory discharge because the evidence is legally insufficient and because the jury's affirmative finding is against the great weight and preponderance of the evidence; (2) the court erred as a matter of law in submitting question two which asked whether an express or implied contract existed between Federal Express and Dutschmann to provide her a GFTP because Texas courts do not recognize an express or implied contract arising from an employee handbook; (3) the court erred in submitting question two and in refusing to submit Federal Express' requested question two and instructions four and five because the trial court failed to submit a question regarding breach of contract; (4) the court erred as a matter of law in submitting question three because Texas courts do not recognize the doctrine of good faith and fair dealing in the employment context; and (5) the court erred in submitting question ten regarding attorney's fees because the question was not properly limited to recovery for authorized causes of action. Also, as a part of points one, two and four, Federal Express complains of the court denying its motion for summary judgment and its motion for directed verdict. Federal Express conceded during oral argument that it had waived its factual-sufficiency points due to its failure to include them in its Motion for a New Trial. See TEX.R.CIV.P. 324.

Marcie Dutschmann had been employed by Federal Express, chiefly as a courier, from August 3, 1984, to October 26, 1987. The record indicates that on numerous occasions during her employment, she complained of sexual harassment, including uninvited sexual advances by Aristeo Cuevas, one of her immediate supervisors, sexually suggestive jokes and innuendos, and obscenities scratched into the paint of her delivery truck. On March 18, 1986, Cuevas masturbated in the Federal Express vehicle Dutschmann was driving, and he attempted to force her to participate. She reported this incident and other instances of harassment to Nate Jackson, the senior manager at the Waco station. According to Dutschmann, she was not one of Jackson's favored employees. She also reported Cuevas' inappropriate behavior of March 18th to Dan Kinsinger, operations manager at that time. She notified Jackson's superior in Dallas of the ongoing abuse and discriminatory treatment; however, Jackson told her that she was the source of the problem. Jackson admitted at trial that Dutschmann had complained since 1986 about the way she was treated at Federal Express and that her work had been adversely affected.

Federal Express terminated Dutschmann's employment in October 1987, for allegedly falsifying delivery records. Her employment had previously been terminated on August 18, 1987, under the same charge but was reinstated on September 4. Following her second termination, Dutschmann appealed through the company's internal appeals process, the GFTP. Dutschmann progressed through every step of the grievance process and focused at trial on the manner in which Federal Express administered the GFTP, particularly the Board of Review proceeding. She argues that Federal Express failed to "ensure her fair and equitable treatment" throughout the proceedings and to ensure her "the benefits of due process." Following the Board of Review, Dutschmann filed a complaint against Federal Express with the Texas Commission on Human Rights. She then filed this suit against Federal Express and Nate Jackson, the senior manager at the time of her discharge.

Federal Express asserts in point one that there is no evidence to support the jury's affirmative finding that it terminated Dutschmann in retaliation for making complaints of sexual harassment against other Federal Express employees. Federal Express asserts that Dutschmann failed to set forth and prove a cause of action for retaliatory discharge pursuant to the Texas Commission on Human Rights Act. See TEX.REV.CIV.STAT.ANN. art. 5221k § 5.05 (Vernon 1987). However, Federal Express has waived its complaint to the jury's affirmative response to question one because it failed to distinctly point out to the court any objectionable matter as well as the specific grounds of the objection. See TEX.R.CIV.P. 274. The objections made by Federal Express to the charge are as follows in their entirety:

COUNSEL: Your Honor, first of all, we would object to the questions and instructions posed in the jury Questions Nos. 2, 3, and 4. We feel like these deal with areas that are inappropriate on the same basis that I have mentioned in my Motion for Instructed Verdict; and, likewise, we would object to the Court's failure to include certain instructions that we have posed to the Court and certain questions.

Those instructions posed, that we would object to the Court's not including them, would be Instructions Nos. 3, 4, 5, 7, and 13. And the questions, that we would object to the Court not including them, would be Questions 2, 3, 5, 10, and 16.

Even if counsel's objections had included an objection to question one, Rule 274 expressly prohibits adoption of objections made to prior questions or instructions in the charge. See id. Counsel's attempt in this instance to adopt by reference oral objections presented to the court during the trial and presumably before the jury charge was prepared do not meet the Rule 274 specificity requirements. Id.; Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex.1986). Nor does Appellant's Motion for Instructed Verdict, Motion for Judgment NOV, or its Amendment to the Motion for Judgment NOV reference Federal Express' "no evidence" complaint on appeal regarding the submission or substance of question one. See Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 477 (Tex.1988).

Even if the complaint had been preserved, the record contains more than a scintilla of probative evidence of a continuing pattern of violations with the employer's knowledge. See Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). We must accept Dutschmann's testimony as true and totally disregard any contrary testimony; that is, we cannot substitute our view of the credibility of the witnesses for that of the jury in a "no evidence" challenge. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 797 (1951). See Stafford, 726 S.W.2d at 16. Considering only the evidence and reasonable inferences that tend to support the jury's finding and disregarding all evidence and inferences to the contrary, we hold that Dutschmann's testimony about the repeated sexual harassment she experienced, her attempts to fend off same, and her complaints to management constitutes more than a scintilla of probative evidence to support the affirmative answer to question one. See Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). Point one is overruled.

Federal Express complains in point two that, because Texas courts do not recognize an express or implied employment contract arising from an employment handbook, the court erred as a matter of law in submitting question two. It complains in point three that the court erred in submitting questions two and in failing to submit Federal Express' requested question two and requested instructions four and five because the trial court failed to submit a question regarding breach of contract.

At the inception of her employment, Dutschmann received an Employment Handbook and Personnel Policy and Procedure Manual that expressly stated that her employment was at-will and "would continue as long as it was mutually satisfactory to both parties." The manual specified that no contractual rights were created by the handbook, its use intended only as "a reference." The Policy and Procedures Manual stated under the "Purpose" section that the manual was intended solely as a "guide" for management and employees, that it was "not a contract of employment, and [that] no such contract may be implied from its provisions." (Emphasis added). The manual further stated that it could be "modified, amended or deleted by the Company at any time at its sole discretion without prior notice."

Dutschmann acknowledged in writing that she had received the handbook, that she understood it did not constitute a contract, and that the information provided might need to be changed by Federal Express from time to time. Nevertheless, the section labeled "Guaranteed Fair Treatment Policy" stated that the company would provide an internal grievance process, the GFTP, to "all Federal Express...