Green v Industrial Specialty Contractors

• Decision Date: 25 March 1999
• Citation: 1 S.W.3d 126
• Parties: <!--1 S.W.3d 126 (Tex.App.-Houston 1999) SUSAN GREEN, Appellant v. INDUSTRIAL SPECIALTY CONTRACTORS, INC. AND ROBERT CHARLES, Appellees NO. 01-98-00925-CV In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 126

1 S.W.3d 126 (Tex.App.-Houston[14th Dist.] 1999)

SUSAN GREEN, Appellant v INDUSTRIAL SPECIALTY CONTRACTORS, INC. AND ROBERT CHARLES, Appellees

NO. 01-98-00925-CV

In The Fourteenth Court of Appeals

March 25, 1999

On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 97-43092

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Chief Justice Schneider and Justices Taft and Price.^*

O P I N I O N

Michael Schneider, Chief Justice

Appellant, Susan Green, appeals a no-evidence summary judgment granted in favor of the appellees, Industrial Specialty Contractors, Inc. (Industrial) and Robert Charles. We affirm in part and reverse in part.

Factual Background

This case arises from Green's employment at Industrial as a payroll clerk. Green was hired based on the recommendation of her friend Delores Blevins, the office manager at Industrial's Baytown project. In September of 1995, after approximately six months on the job, Green quit her job with Industrial. According to Green, she was forced to resign because of alleged incidents of sexual harassment by other Industrial employees.

Green contends that soon after she became an employee, Charles, Industrial's Quality Control Coordinator at the Baytown site, made comments about her blue jeans. Green stated she was informed by Blevins that she should not wear her blue jeans anymore because Charles made a comment to Blevins that she should "wear tight blue jeans like the new girl does." Green believed that Charles had supervisory authority over her, and, therefore, began to wear looser fitting jeans. Blevins, in her affidavit attached to the appellee's motion for summary judgment, denies that Charles ever made that comment.

Green also alleges that Paul Borel, a co-worker, passed around some photographs of several individuals on a nude beach and commented to himself that he wished Industrial could hire some employees like this. Green also asserts that Borel explained that one of the individuals was "rather endowed," and that she could get black eyes. However, Green admits that she never saw these pictures and that they were removed from Industrial's Baytown site immediately after Industrial learned of their existence. Green also alleges that Charles, during an evacuation that occurred at the Baytown site due to heavy rains, made a "wet T shirt" comment to Green. According to Green, Charles stated that he wished "we could have a wet T-shirt contest" with Green as a contestant and Charles as a judge. Charles denies ever making the statement.

Next, Green alleged that Borel and Russell Dugan, Industrial's Safety Supervisor, had a conversation where Dugan described a sexual encounter between Dugan and his wife. This conversation was not aimed at Green, and she was not drawn into the conversation. Moreover, Green never informed anyone that she was offended by the conversation. The next alleged incident of harassing behavior involved Elizabeth Bentenson, a female co-worker, blowing up a plastic bag and telling Borel that here was his "blow-job to go." Again, this conversation was not directed at Green, and she never informed anyone that she was offended by the joke. The final incident involved allegations by Green that Charles touched her once on the buttocks. Green admits that she did not actually see Charles touch her, and that she did not report this incident to anyone at Industrial until the day she quit her job.

Based on these alleged incidents, Green sued Industrial and Charles for violating the Texas Commission on Human Rights Act. Specifically, Green asserted causes of action for: (1) hostile work environment sexual harassment; (2) sexual discrimination; (3) constructive discharge; (4) retaliatory discharge; (5) intentional infliction of emotional distress; and (6) assault and battery. Industrial and Charles filed a no-evidence motion for summary judgment on all of Green's claims. The motion was granted by the trial court, and this appeal followed.

Challenge to the Summary Judgment Affidavits

Before addressing whether the trial court erred in granting the appellees' motion for summary judgment, we must examine Green's claim that the appellees' summary judgment affidavits were improper. Green, without pointing to any specific statements within the affidavits, contends we should strike the affidavits because they contain conclusory, self-serving statements, and statements of opinion and hearsay. See Tex. R. Civ. P. 166(a)(f). Industrial and Charles, citing Mathis v. Bocell, 982 S.W.2d 52 (Tex. App.--Houston [1st Dist.] 1998, no pet.), contend that Green has not preserved this issue for appellate review because she failed to obtain a ruling from the trial court on any of her objections. Id. 58. We agree, in part, with the appellee's argument.

First, an objection that an affidavit is conclusory is an objection to the substance of the affidavit that can be raised for the first time on appeal. City of Wilmer v. Laidlaw Waste Sys., Inc., 890 S.W.2d 459, 467 (Tex. App.--Dallas), aff'd, 904 S.W.2d 656, 660-61 (Tex.1995). Thus, Green need not have obtained a ruling on her objection to raise this objection on appeal. Id. However, contrary to Green's assertion, we find that the affidavits are not conclusory. Each affidavit was based on the personal knowledge of the affiant derived from his or her work at Industrial. Moreover, the affidavits provided the underlying factual basis for their statements. See Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.--Houston [1st Dist.] 1997, no writ). We find that the affidavits were not conclusory.

With respect to Green's complaint that the affidavits contained statements of opinion and hearsay, we find that she has not preserved these complaints for appellate review. An objection that an affidavit contains statements of opinion or hearsay is an objection to the form of the affidavit. Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex. App.--Houston [1st Dist.] 1992, writ dism'd w.o.j.). Thus, to preserve these complaints for appellate review, Green had to obtain a written ruling on her objections. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993). Green did not do so, and, therefore, has failed to preserve these objections for appellate review. Mathis, 982 S.W.2d at 58.

Summary Judgment in Favor of Industrial and Charles

In one point of error, Green complains the trial court erred in granting summary judgment in favor of Industrial and Charles.

Standard of Review

In a no-evidence summary judgment, the movant must specifically state the elements as to which there is no-evidence. Tex. R. Civ. P. 166(a)(i). The burden then shifts to the non-movant to bring forth evidence that raises a fact issue on the challenged elements. Id. When reviewing the grant of a no-evidence summary judgment, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment is improperly granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact. Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.--Houston [1st Dist.] Feb. 18, 1998, no pet.); Tex. R. Civ. P. 166(a)(i). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion." Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Conversely, more than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

Grounds for Summary Judgment

In their motion for summary judgment, Industrial and Charles asserted that Green had no evidence to support any of her claims. On appeal, Green only attacks the trial court's decision to grant summary judgment on her hostile work environment, constructive discharge, and assault and battery claims.¹ Therefore, we address each of these claims accordingly.

Sexual Harassment - Hostile Work Environment

To establish a statutory claim for sexual harassment based on a hostile work environment, the plaintiff must show that: (1) she belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based upon sex; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action. Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 659 (Tex. App.--Corpus Christi 1994, writ denied). In their motion for summary judgment, Industrial and Charles asserted that Green had no evidence to establish that: (1) the alleged incidents of harassment created an objective and subjective hostile work environment (i.e., the harassment did not affect a term, condition, or privilege of employment); and (2) Industrial knew or had reason to know of the alleged sexual harassment.

The Applicable Law

The Texas Human Rights Act is modeled after federal law with the purpose of executing the policies set forth in Title VII of the federal Civil Rights Act of 1964. Ewald, 878 S.W.2d at 658. In Meritor Sav. Bank FSB v. Vinson, the United States Supreme Court set out the applicable standard for sexual harassment claims based on an alleged hostile work environment. 477 U.S. 57, 106 S. Ct. 2399 (1986); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367 (1993) (reaffirming the Meritor standard). Title VII is violated when the workplace is permeated with discriminatory intimidation, ridicule, and insults that are sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment. Meritor, 477 U.S. at 64, 106 S. Ct. at 2405-06.

In Harris, the Supreme Court recognized...