Graham v. Atlantic Richfield Co., 13-91-417-CV

• Decision Date: 14 January 1993
• Docket Number: No. 13-91-417-CV,13-91-417-CV
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 1137, 61 Empl. Prac. Dec. P 42,238, 8 IER Cases 756 Shirley GRAHAM, Appellant, v. ATLANTIC RICHFIELD COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 747

848 S.W.2d 747

60 Fair Empl.Prac.Cas. (BNA) 1137,

61 Empl. Prac. Dec. P 42,238, 8 IER Cases 756

Shirley GRAHAM, Appellant, v. ATLANTIC RICHFIELD COMPANY, Appellee.

No. 13-91-417-CV.

Court of Appeals of Texas,

Corpus Christi.

Jan. 14, 1993.

Rehearing Overruled Feb. 25, 1993.

John C. Maher, Jr., Stanley & Maher, Houston, for appellant.

A. Martin Wickliff, Jr., Barbara L. Johnson, Wickliff & Hall, William Book, Houston, for appellee.

Before GILBERTO HINOJOSA, DORSEY and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

GILBERTO HINOJOSA, Justice.

Appellant, Shirley Graham, sued appellee, Atlantic Richfield Company (ARCO), for negligence. At the close of Graham's case in chief, ARCO moved for a directed verdict. Ruling that ARCO owed no duty to Graham, the trial court granted the motion for directed verdict against her. On appeal, Graham challenges this ruling by one point of error. The primary issue is whether a premise owner or occupier owes a duty to employees of contractors working at its facilities to provide a work place free of sexual harassment. We affirm.

Shirley Graham worked from 1981 until September 11, 1987 for Greenwade Services, Inc., a company providing janitorial services. Mrs. Graham was in her fifties at the time of this suit, and all her life she had worked in restaurants and other low paying jobs. Greenwade Services, Inc., had contracted with ARCO, appellee, of Houston, Texas, and it was on ARCO premises that Mrs. Graham performed her cleaning duties. It was also on ARCO premises that one of ARCO's employees, Jimmy Epperson, allegedly subjected Mrs. Graham to continual verbal abuse and sexual harassment.

In the underlying suit, Mrs. Graham claimed that ARCO, the premise owner or occupier, owed to all persons a duty to maintain a work environment free of sexual harassment and abusive conduct by its employees. ¹ Granting ARCO's motion for directed verdict, the trial court stated that there was no basis in common law to impose such a duty.

Mrs. Graham testified that, over the course of her six years of employment with Greenwade Service, Inc., Epperson made numerous sexual advances toward her. Epperson was married at the time of the events in question. Prior to April 14, 1987, on several occasions he asked her to go out for a drink or on a date. Mrs. Graham testified that on one occasion he drove up to her while she was walking down the road and asked if she "wanted to go to the warehouse and have a good time." She further testified that on another occasion he drove up to the warehouse and called her over, and when she again refused his invitation to "go out," he pointed to his "private parts" and said, "See what it does to me just to think about it." On yet another occasion, Epperson followed Graham into the Greenwade Services, Inc., supply trailer and suggested that it would be a good place to "play around" where no one would know about it. Mrs. Graham testified that after this incident she locked the trailer door when she went inside, but that Epperson continued to try to get in and hollered that she open the door.

Mrs. Graham stated that in late 1986 or early 1987, Epperson started following her around, looking at his watch, and taking notes. It was about the same time that she had refused to wax a floor per Epperson's request because, she testified, she believed it was the night shift's duty.

Mrs. Graham testified that she considered these remarks and occurrences unwelcome offers to have sex, and that they made her feel degraded and "terrible." It is undisputed that at no time did Epperson touch or even attempt to touch Mrs. Graham. However, Mrs. Graham stated that Epperson's conduct interfered with her ability to safely and satisfactorily perform her job. The record does not show that she suffered any physical ailments or sought medical or psychiatric assistance as an immediate result of Epperson's conduct.

On July 30, 1987, Mrs. Graham reported Epperson's conduct for the first time to the ARCO Human Relations department. Although Epperson had not been the subject of any prior complaints to the Human Relations Department, there was testimony that some female employees felt uncomfortable around him because he was "a little too friendly." Mrs. Graham testified that at no time was she advised to speak to her supervisor at Greenwade Services, Inc.

Even though Mrs. Graham made several subsequent visits to the same office and was assured each time that the problem would be taken care of, she stated that Epperson continued to follow her around and take notes for the remaining month and a half of her employment. It is undisputed, however, that by the time Mrs. Graham reported Epperson to the Human Relations department, he had discontinued making any remarks to her, derogatory or otherwise.

Epperson's supervisor testified that, immediately after Mrs. Graham complained, an ARCO Human Relations representative told him that a sexual harassment complaint involving Epperson had been made, and that it would be pursued with ARCO's legal department. Epperson's supervisor further testified that no action against Epperson was ever taken, but that ARCO did show a film on sexual harassment to supervisors in general.

Prior to 1987, Mrs. Graham's work record was exemplary. During her six years with Greenwade Services, Inc., her wage increased from $5.00 per hour to $7.50 per hour, and she was promoted to foreman. But in early to mid 1987 she began to receive a few minor informal reprimands. Most of the reprimands were the result of complaints by ARCO employees working under Epperson. Then on July 24, 1987, Mrs. Graham received a "written counseling report" from Greenwade Services, Inc., stating that she spent considerable time socializing and engaged in other "non-work related activities" during working hours and within the view of other employees. The primary offensive non-work related activity was Mrs. Graham's cake business, in which she received orders from, and baked cakes for, many ARCO employees.

A short time after Mrs. Graham's written reprimand, her supervisor, Skip Greenwade, became aware of her business card that listed her work phone number on ARCO premises. As a result of this new information, Greenwade Services, Inc., decided to transfer Mrs. Graham to a different wing of the ARCO plant where she would have worked the night shift and would have been under direct supervision. Because she could not see well at night to drive, and because the demotion caused a reduction in pay, Mrs. Graham refused to comply with the transfer. As a result, after six years of dedicated work, Mrs. Graham was terminated on September 11, 1987. The undisputed evidence showed that Greenwade did not discover Epperson's sexual harassment until after Mrs. Graham was fired.

Mrs. Graham testified that after she was fired she moped around and cried a lot, and that she felt uneasy every time she drove by ARCO, because she had worked very hard and was fired for something she did not do. She testified that she had not looked for a job for fear of the same thing happening again. She testified on direct examination that her high blood pressure and asthma were adversely affected, and that she threw up a lot. But on cross examination she testified that she simply felt sort of sick in the stomach when she would pass an ARCO plant. Mrs. Graham never sought medical or psychiatric attention for the above ailments.

Mrs. Graham filed suit against Greenwade Services, Inc., Jimmy Epperson and ARCO. Greenwade Services, Inc., and Epperson were non-suited. Mrs. Graham's live pleadings alleged that ARCO had the duty to maintain a work environment for all persons free of sexual harassment and abusive conduct by its employees, and that it breached its duties by failing to do so. Mrs. Graham also alleged that ARCO had a duty to investigate the claims of sexual harassment and had breached that duty by failing to do so. At the close of Mrs. Graham's case in chief, ARCO moved for a directed verdict, arguing that Mrs. Graham had not established that Atlantic Richfield owed her any duty of care. Ruling that there was no such common law duty, the trial court granted the motion.

By one point of error, Mrs. Graham appeals this ruling. Citing classic slip and fall premise liability cases, she argues that ARCO, because it is the owner and occupier of the premises, owed a duty to employees of contractors working at ARCO's facilities to provide a safe place to work and to reduce or eliminate those conditions that pose an unreasonable risk of harm to employees of contractors working at ARCO's facilities. Zaborowske v. OES, Inc., 731 S.W.2d 614, 616 (Tex.App.--Houston [1st Dist.] 1987, no writ); Joachimi v. City of Houston, 712 S.W.2d 861 (Tex.App.--Houston [1st Dist.] 1986, no writ). We overrule her point of error because the conduct creating the "dangerous condition" was an unforeseeable intentional tort; it was the sole intervening cause of any injuries suffered by Mrs. Graham as a matter of law.

The de novo review is the proper standard to be employed by an appellate court in reviewing a trial court's directed verdict based on non-evidentiary grounds. McCarley v. Hopkins, 687 S.W.2d 510, 512 (Tex.App.--Houston [1st Dist.] 1985, no writ). One way in which a directed verdict is proper is when the law applied to the undisputed facts mandates a particular result. See Id.; Hall, Standards of Appellate Review in Civil Appeals, 21 St. Mary's L.J. 865, 893 (1990). And if a trial court's judgment on a directed verdict can be sustained by any theory of law involved, leaving no issue of fact for the jury, a court of appeals may not disturb the judgment. Hines v. Massachusetts Mut. Life Ins. Co., 174 S.W.2d 94 (Tex.Civ.App.--Ft. Worth 1943, no writ).

The threshold inquiry in a negligence case is duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). The existence of a duty is a question of law for the court to decide from the facts...