Hoffmann-La Roche Inc. v. Zeltwanger

• Citation: 144 S.W.3d 438
• Decision Date: 27 August 2004
• Docket Number: No. 02-0120.,02-0120.
• Parties: HOFFMANN-LA ROCHE INC., a/k/a "Roche," Petitioner v. Joan ZELTWANGER, a/k/a Joan Gonzales, Respondent.
• Court: Supreme Court of Texas

144 S.W.3d 438

HOFFMANN-LA ROCHE INC., a/k/a "Roche," Petitioner v. Joan ZELTWANGER, a/k/a Joan Gonzales, Respondent.

No. 02-0120.

Supreme Court of Texas.

Argued February 5, 2003.

Decided August 27, 2004.

Appeal from the Corpus Christi Court of Appeals.

Melissa Essary, Waco, Lane Transou, The Woodlands Michael W. Fox, Haynes and Boone, Austin, W. Carl Jordan, Houston, for Amicus Curiae.

Thomas F. Loose, Phillip R. Jones, Cynthia Keely Timms, Michael V. Powell, Locke Liddell & Sapp LLP, Dallas, Harvey G. Joseph, Law Offices of Harvey G. Joseph, Allan G. King, Dallas, and Russell H. McMains, Law Offices of Russell H. McMains, Corpus Christi, Shannon Cameron and Stuart M. Reynolds Jr., Winstead Sechrest & Minick, Dallas, for Petitioner.

Charles T. Frazier Jr., Cowles & Thompson, P.C., Tim Gavin, Jeffrey S. Levinger and Stephanie Dooley Nelson, Carrington Coleman Sloman & Blumenthal, L.L.P., G. Michael Gruber, Brian N. Hail, Godwin Gruber, P.C., Dallas, for Respondent.

Chief Justice PHILLIPS delivered the opinion of the Court in which Justice HECHT, Justice OWEN, Justice JEFFERSON, Justice WAINWRIGHT and Justice BRISTER joined.

We must decide whether a plaintiff can recover damages on a claim for intentional infliction of emotional distress when the Legislature has created a statutory right to seek emotional damages for the same actions that form the basis of the intentional-infliction claim. The court of appeals concluded that the plaintiff could recover damages under both claims, electing mental anguish and punitive damages under her intentional-infliction claim while taking other compensatory damages and attorney's fees under her sexual harassment claim. 69 S.W.3d 634. We conclude that when the gravamen of the plaintiff's complaint is for sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent tort claim for intentional infliction of emotional distress. We therefore reverse the judgment of the court of appeals and remand the cause to the trial court for rendition of judgment consistent with this opinion.

I

Joan Zeltwanger¹ sued her former employer, Hoffmann La-Roche, Inc. ("Roche"), for sexual harassment under Texas Labor Code section 21.051, retaliation under Texas Labor Code section 21.055, and intentional infliction of emotional distress.² Zeltwanger also sued Jim Webber, her supervisor at Roche, for intentional infliction of emotional distress.

Except for the retaliation claim, Zeltwanger prevailed at trial on all of her claims against Roche and Webber. Against Webber, who is not a party to this appeal, she obtained a judgment in the amount of $50,160 for intentional infliction of emotional distress. On her sexual harassment claim against Roche, the jury awarded Zeltwanger $835,963 for front and back pay, $500,000 in compensatory damages, and an additional $8,000,000 in punitive damages. On the intentional infliction of emotional distress claim against Roche, the jury awarded $1,000,000 for mental anguish, $73,000 for past and future medical care, and another $8,000,000 in punitive damages. Acknowledging potential double recovery and applicable statutory cap³ considerations with respect to the $500,000 in compensatory and the $8,000,000 in punitive damages of the harassment award, Zeltwanger moved to limit her harassment damages to front and back pay and attorney's fees while taking her mental anguish and punitive damages under her intentional-infliction claim. The trial court therefore rendered judgment awarding Zeltwanger $847,036 on her harassment claim, comprising front and back pay adjusted for disability payments and interest. Judgment on the intentional infliction of emotional distress claim against Roche, which at that time was not subject to a statutory cap,⁴ amounted to $9,504,706, adjusted for interest. The court of appeals affirmed these awards, and Roche appeals only the intentional infliction of emotional distress claim.

II

Zeltwanger began working in November 1990 as a sales representative for Roche, a pharmaceutical company. In this capacity, Zeltwanger worked out of her home, as did other Roche sales representatives. Roche, like many pharmaceutical sales companies, did not maintain regional offices, instead running its nationwide operations solely from its New Jersey corporate headquarters.

Until 1992, Zeltwanger worked under Dallas-based sales manager Betty Turicchi. When Turicchi became a Roche supervisor in another region, Webber, a Dallas-based division sales manager, became Zeltwanger's supervisor. Zeltwanger testified that Webber began telling dirty jokes in front of her in the last half of 1992, three or four months after Zeltwanger moved into his division, and went on to engage in other objectionable conduct.

Zeltwanger discussed Webber's behavior with Turicchi on several occasions. Turicchi, Zeltwanger says, gave her pointers on how to handle Webber and "document everything that was happening" but warned her that making a claim of sexual harassment within the company would jeopardize Zeltwanger's chances of advancement. Subsequently, Turicchi advised Zeltwanger that she would need to contact Roche human resources representative Betty DeVos in order to make a formal complaint.

Zeltwanger eventually did contact DeVos, and on August 19, 1994, she faxed a handwritten, five-page statement to her, which made the following complaints about Webber:

1. Last fall at Div Mtgs with Zore — during Rocephin game. I won a question & he delivered my $5 between his teeth to me stating & you've implied you've never been to those top-less bars in front of 2 work groups. Betty Turrichi witnessed this at meeting. Her division or group was there also.

2. At Dir Mtg last fall — told dirty jokes & talked about top-less dancers. I told him I do not like jokes like that & did not want to hear them.

3. Talked about his car name was in college & that they used to have sex or "do it" in the car.

4. Last summer field trip — continually tells dirty & inappropriate jokes — verbalized to me the sorority girls "he screwed" in college the couples they (him & his wife) still hang around & his goal to "do them" all while standing at the trunk of my car. I responded with "I don't want to hear this."

5. Had lunch last Summer/Spring with my Arl. Memorial Hospital Anesthesia & Jim made a comment to those physicians that I was not the typical homely Betty Turicchi hire & he thought it was a joke when I walked into Bennigans for a confirming interview. Their (the Drs.') reply was — what is a typical Betty Turicchi hire? Jim's reply was they don't have legs & a body like that. I was standing outside of the room & heard this as I entered back into the room.

6. Told a Howard Stern panty (underwear) story from a concert his daughter attended — ask me if I was wearing panties. This story was told in one of my GI offices as I set up a teleconference last spring.

Despite my protest he continued as follows:

7. Last winter while on field trip Jim made inappropriate references to his body parts i.e. "his ding dong" & how when he was in school he whipped it out in class. I told him I did not want to hear it.

8. Last winter while on field trip Jim made reference to my having a bad hair day & flung my hair by touching it in front of one of my hospital pharmacists. Before this call I was lectured about going & "kicking some ass" with this RPH & telling him what a liar he is for publishing a newsletter at hospital. He continually disregards my credibility & work involved with the BID dosing problem at this hospital. To which the situation attempts have been with in converting BID to QID dosing of Rocephin.

9. Last month on field trips as on previous others he continually mentions & alludes to his sexual encounters & sex positions (on his back) while screwing this girl who lived in these apartments as we pass the apartments. I advised him at the time I don't want to hear this.

10. Last Dec. when Jim Webber came to my house to check samples I was in my office filling out a form. When I was finished I found him in my bedroom. When I ask him what he was doing & to get out of my bedroom he said he was trying to find my stereo.

There will be more to follow as I continue to compile a list.

On August 24, 1994, Webber conducted a regularly-scheduled performance review of Zeltwanger, which Zeltwanger and Turrichi attended. Zeltwanger testified that Webber "screamed and yelled" at her and repeatedly criticized her job performance during this review. Turicchi testified that the discussion at the review focused on Zeltwanger's job performance, particularly her sales skills, and that Zeltwanger disagreed with Webber's assessment of her performance. In his written evaluation based on the review, Webber gave Zeltwanger an "H" rating, a below average designation that signifies the employee is "meeting most" of the standards but needs to make improvements. Shortly after this review, Roche completed its investigation of Zeltwanger's complaint and terminated Webber because of his inappropriate behavior with Zeltwanger.

At the end of 1994, Zeltwanger received notification that Roche had fired her also. Shortly thereafter, she filed a complaint for sexual harassment against Roche with the Texas Commission on Human Rights. Under the section entitled "Discrimination Statement," she stated:

I believe that I have been discriminated against, in violation of the Texas Commission on Human Rights Act, as amended, and Title VII of the Civil Rights Act of 1964, as amended, because of my sex, female (sexual harassment), inasmuch as:

Background: Jim Webber's reflections and references to his sexual exploits, and matters of a sexual nature, became non-stop and always managed to get personal. Some examples of this intolerable behavior are:

— On a field trip in early Winter 1993, Mr. Webber made inappropriate remarks about his...