IN RE: CONRAD CARMONA
| Decision Date | 29 March 2011 |
| Docket Number | Case No. 08-20783-dob,Case No. 08-2075-dob |
| Court | U.S. Bankruptcy Court — Eastern District of Michigan |
| Parties | IN RE: CONRAD CARMONA, SR., Debtor. LINDA J. MORRISON, VANESSA ANN GOMEZ, Plaintiffs, v. CONRAD CARMONA, SR., Defendant. |
Hon. Daniel S. Opperman
Adversary Proceeding
Opinion on Complaint to Declare Debt Non-Dischargeable
under 11 U.S.C. § 523 (a)(6)
Plaintiffs Linda J. Morrison and Vanessa Ann Gomez commenced this adversary proceeding seeking to declare pre-petition state court judgments against Defendant-Debtor Conrad Carmona, Sr., entered after the parties accepted a case evaluation award under Michigan Court Rule 2.403(M)(1), non-dischargeable under 11 U.S.C. § 523(a)(6). Defendant answered the complaint and admitted that state court judgments were entered against him, but denied that the judgments sufficed to prove that he willfully and maliciously injured Plaintiffs. After the Court denied cross-motions for summary judgment on the issue of collateral estoppel, the matter proceeded to Trial on December 9, 2010. Plaintiff Gomez did not appear at Trial, and the Court granted Defendant's oral motion for summary judgment as to Plaintiff Gomez. The Court then took the matter under advisement as to Plaintiff Morrison.1 For the following reasons, the Courtholds Defendant's debt to Plaintiff Morrison non-dischargeable under Section 523(a)(6).
Plaintiff commenced a civil action in the Bay County Circuit Court alleging that Defendant violated MCL § 37.2103 by sexually harassing her. Plaintiffs state court complaint alleged both quid pro sexual harassment as well as a hostile work environment. The matter proceeded to case evaluation under MCR 2.403, and the panel recommended that Plaintiff be awarded $10,000. Both parties accepted the case evaluation award, and judgment in favor of Plaintiff was entered on March 6, 2008.
Defendant owned a restaurant known as Touch of Mexico and Plaintiff worked at Touch of Mexico from 1999 through January 28, 2007. The working relationship between Plaintiff and Defendant was at times confrontational, resulting in numerous instances where Plaintiff walked off the job or Defendant fired her. Plaintiff typically returned to work the next day or in a matter of days, either because Plaintiff asked to come back or Defendant called her to return to work.
As Plaintiff had regained custody of her son during this time, Plaintiff needed continued employment not only to provide support for them, but also as a condition of keeping custody. During this time, Defendant also received a multi-million dollar judgment from a civil lawsuit.
Overall, the atmosphere at Touch of Mexico was friendly. It was common for Plaintiff and other employees to banter and tell jokes while at work. Plaintiff and other employees discussed their dating experiences and sexual activities during work hours, and Defendant sometimes overheard these conversations.
In 2004 Defendant and his former wife separated, and their divorce was finalized in June of 2005. Prior to that divorce, Plaintiff viewed Defendant as a friend with whom she could talk about personal activities such as dates with other men. Plaintiff also sought assistance from Defendant to secure a new apartment, but Defendant was unable to help. In turn, Defendant expressed to Plaintiff that he was depressed due to his divorce.
At trial, Plaintiff testified that Defendant's sexual harassment began soon after Defendant's divorce became final. On direct examination, Plaintiff testified that Defendant grabbed her breasts and brushed his body up against her. Plaintiff described how Defendantwould ask about her breasts, specifically her nipple size, and pulled up her shirt and grabbed her breasts in an attempt to suck on them. Plaintiff testified this type of conduct occurred probably "15-20 times." When asked to separate the various incidents of unwanted contact, Plaintiff testified that one incident occurred when she was cleaning out an upstairs rental unit owned by Defendant. Plaintiff testified Defendant came into the unit and tried "to get his hands full" and requested oral sex. Plaintiff also testified that when she was leaned over cleaning the tub, Defendant slapped her bottom. Plaintiff told him to stop, but Defendant just walked away laughing. Plaintiff further testified that during that incident Defendant also rubbed up against her breasts and tried to grab them. In addition, Plaintiff testified Defendant locked the door to the rental unit and ensured that no one else was there.
Beyond the incident in the rental unit, Plaintiff testified that "10-15 times" Defendant grabbed her breasts in the multiple areas of the restaurant and that at least once a co-worker walked in and observed the conduct. Plaintiff testified that when Defendant touched her she "told him to stop" and "told him no." According to Plaintiff, Defendant "threatened my job all the time" by saying that if she "valued [her] job" she "would do what he asked and just shut up and do it." Plaintiff testified that what Defendant wanted her to "do" was perform oral sex. Plaintiff further testified that Defendant knew she needed the job at Touch of Mexico to pay expenses and to keep custody of her son.
The incident at issue involved oral sex. Plaintiff testified she was working the day of the incident. Although Plaintiff could not recall the exact date, she testified she read that the incident occurred in January of 2006, between 9 and 10:30 in the morning and before the restaurant opened at 11 a.m. Only Plaintiff and Defendant were in the restaurant at that time. Plaintiff had come out of the bathroom into the waitress area to find that Defendant had "pulled his sweat pants down," "exposed himself," lifted his apron and sat down. Plaintiff then testified that Defendant told her "he wanted a blow job if I was to keep my job." Plaintiff told Defendant she did not want to, but Defendant told her that if " you value your job you will do it." Plaintiff testified she "felt threatened, so I did it." Plaintiff testified that after the oral sex she vomited in the bathroom, but finished her shift.
Plaintiff testified Defendant subsequently solicited her for oral sex quite a few times. According to Plaintiff, Defendant a "couple times" forced her to put her hand on his privates. Plaintiff testified Defendant's pants were up during these incidents. Plaintiff further testified that she told Defendant she had work to do and would look for any excuse to get away. Plaintiff also testified that Defendant acknowledged to her that his conduct was not okay, that it was wrong, and it was "against God." When asked why she continued to work at Touch of Mexico after the oral sex and subsequent incidents, Plaintiff testified she could not pay her bills without the job and her son depended on her. Plaintiff testified she looked for work at 15-20 places following the oral sex episode.
Plaintiff testified that after the oral sex incident, and her subsequent refusals to engage in further oral sex, Defendant's conduct towards her changed, notably in regard to her work hours. Prior to the oral sex incident Plaintiff typically worked 25-30 hours a week and afterwards she was only working 13-14 hours a week.
During cross examination, Plaintiff testified Defendant overtly threatened her job on the day the oral sex occurred. She also reiterated that she was "positive" she suffered reduced hours. Plaintiff also clarified that leading up to the oral sex incident she had her hours cut and that Defendant promised that if she engaged in oral sex he would give her those hours back but because she subsequently refused, she suffered a reduction in hours. When asked about portions of her deposition testimony wherein she testified that there were no contemporaneous threats to her job made at the time of the oral sex, Plaintiff recanted that testimony and testified at trial that Defendant made actual threats at the time he requested oral sex. Plaintiff also recanted other deposition testimony that Defendant engaged in unwelcome sexual contact and speech while Defendant was still married explaining that she "was confused" and that conduct definitely occurred after the divorce. Finally, when Plaintiff was asked on cross examination if she told others that she was going to set up Defendant as a sexual harasser because of reports in the paper that he had won a multimillion dollar verdict, she denied saying anything of that nature. On redirect, Plaintiff testified she did not tell anyone she was setting up Defendant.
Although Plaintiff continued to work at Touch of Mexico for approximately one yearafter January, 2006, Plaintiff was deeply depressed following the incident and sought professional help. Plaintiff did not want to get out of bed or go to work. Plaintiff also attempted suicide. Plaintiff was diagnosed as bi-polar sometime in 2009. This condition apparently existed while she was working at Touch of Mexico, but Plaintiff thought she just suffered from severe depression. Plaintiff quit working at Touch of Mexico on January 28, 2007, after she found different employment. Plaintiff testified her injuries include emotional distress, post traumatic stress disorder, as well as the state court judgment in her favor.
Plaintiff then called Defendant as a witness. On direct examination by Plaintiff, Defendant admitted engaging in oral sex with Plaintiff at the restaurant while Plaintiff was an employee. Defendant further acknowledged other incidents of physical touching, but testified those incidents were accidental. Defendant acknowledged his prior deposition testimony where he testified that the oral sex was either wrong or morally wrong. Defendant also acknowledged that he understood Plaintiff depended on her job at Touch of Mexico to meet her financial obligations.
When asked about prior testimony that the incident of oral sex was consensual, Defendant testif...
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