Jespersen v. Sweetwater Ranch Apartments

• Citation: 390 S.W.3d 644
• Decision Date: 05 December 2012
• Docket Number: No. 05–11–00583–CV.,05–11–00583–CV.
• Parties: Sunshine JESPERSEN, Appellant v. SWEETWATER RANCH APARTMENTS and CNC Investments, Ltd., LLP, Appellees.
• Court: Court of Appeals of Texas

390 S.W.3d 644

Sunshine JESPERSEN, Appellant

v.SWEETWATER RANCH APARTMENTS and CNC Investments, Ltd., LLP, Appellees.

No. 05–11–00583–CV.

Court of Appeals of Texas,

Dallas.

Dec. 5, 2012.

William Joseph Dunleavy, Law Office of William J. Dunleavy, Dallas, TX, for appellant.

Delina Ramirez Joachim, J. Richard Hammett, Scott Michael Nelson, Houston, TX, for appellees.

Before Justices MOSELEY, FILLMORE, and MYERS.

OPINION

Opinion By Justice FILLMORE.

Sunshine Jespersen appeals the trial court's judgment in favor of Sweetwater Ranch Apartments and CNC Investments, Ltd., LLP (collectively appellees). In seven issues, Jespersen contends the trial court erred by (1) granting summary judgment in favor of appellees on Jespersen's claims based on pregnancy and disability discrimination, violation of section 92.0081 of the property code, and breach of contract, and on appellees' counterclaim for breach of contract; (2) awarding appellees attorney's fees; and (3) awarding appellees court costs related to the taking of videotaped depositions and obtaining copies of depositions. We affirm the trial court's judgment.

Background

On February 29, 2008, Jespersen was hired to work as a leasing agent for CNC, a property management company that provided on-site management and staff to Sweetwater Ranch, an apartment complex. In March 2008, Jespersen signed a lease for an apartment at Sweetwater Ranch and received a discount on the rent because she was employed by CNC.

There were positions at Sweetwater Ranch for a property manager, an assistant manager, and two leasing agents. In 2008, CNC was having difficulty filling the positions. According to Jespersen, when she started work, she was the only full time employee in the office at Sweetwater Ranch and was required to work overtime “all the time.” Employees from other properties assisted at Sweetwater Ranch. One of these employees, Sarah McMillan, worked as the acting manager at Sweetwater Ranch between March 2008 and July 2008. McMillan was pregnant at the time. McMillan confirmed Sweetwater Ranch was short-staffed and that she worked every day.

Shortly after Jespersen started working at Sweetwater Ranch, she learned she was pregnant with twins. On April 14, 2008, Jespersen saw Dr. Asuncion Acosta for an upper respiratory infection. Dr. Acosta provided a note stating Jespersen needed “at least 2 days off within 7 days period.” After receiving Dr. Acosta's note, CNC provided Jespersen with two days off during every seven-day period.

On May 15, 2008, Jespersen saw Dr. Kimberly Chesshir, an obstetrician. At some point after the visit, Jespersen requested to work twenty hours per week. Jespersen admitted she did not have a note from Dr. Chesshir restricting her work schedule to twenty hours per week, but stated Chesshir prescribed limited activity during the office visit. According to Jespersen, she informed Pam Lindsey, CNC's regional supervisor, of Dr. Chesshir's orders, and Lindsey responded that she needed two full-time employees. Lindsey, however, recalled Jespersen saying “it was too much, too stressful for her, she couldn't do it and that she was quitting” and that Jespersen left “right then.” On May 23, 2008, Lindsey completed a Personnel Change Form that stated Jespersen quit without notice and was not eligible to be rehired.

Jespersen subsequently requested three weeks of medical leave. Lynda Goldstein, CNC's human resources director, testified that Jespersen had not been employed a sufficient period of time to be eligible for sick leave or for leave under the Family Medical Leave Act (FMLA). CNC, therefore, treated Jespersen as resigning because she was required to take medical leave. According to Goldstein, this designation allowed Jespersen to be eligible to be rehired.

Tobi Beck began working as the assistant manager at Sweetwater Ranch on May 27, 2008 and resigned in October 2008 due to stress from working sixty to eighty hours per week. Beck testified it would have been helpful to have somebody working twenty hours per week to answer the phones. At Lindsey's direction, Beck sent Jespersen a letter on May 29, 2008 stating that, effective June 1st, Jespersen's rent would be $956 per month “due to the fact of employment separation with CNC” and that there was balance due of $225.00 for a security deposit. On June 17, 2008, Sweetwater Ranch sent Jespersen a notice that she still owed $221 for June's rent.

On June 19, 2008, Jespersen sent an email to Darla Miles, CNC's regional vice-president, about the June 17th notice. In the email, Jespersen indicated she had been told “two weeks ago” by her doctor that she could return to work if she did not work “a lot of overtime,” but Lindsey would not allow Jespersen to return to work. Jespersen told Miles that Beck said she was working by herself and no one had been hired for Jespersen's position. Miles asked Jespersen to obtain a doctor's note for a full release to return to work without restrictions. Pursuant to CNC's policies, any employee returning from medical leave of more than two days was required to provide a note from the employee's doctor.

When she was hired, Jespersen received a job description for the leasing agent position that stated the physical demands of the job included “constant” walking. Goldstein prepared the job description in either 2006 or 2007 based on an existing job description, her knowledge from working for a property management company, and conversations about the leasing agent job with ten or fifteen employees of CNC, including its regional supervisors and vice-presidents. She also received input on the job description from individuals belonging to a human resources association comprised of “property management people.”

Jespersen, however, testified that she was not required to walk constantly in her job at Sweetwater Ranch. McMillan also testified that leasing agents were not constantly walking. According to Kimberly Kennedy, Sweetwater Ranch's property manager in February 2008, a leasing agent walked several hours during the day, but did not walk eight hours per day. Beck testified that a leasing agent's main job was to walk prospective tenants around the property, but a leasing agent was not required to walk constantly. Beck also testified, however, that the amount of walking required of a leasing agent varied on a daily basis. Some days were spent entirely in the office; some days, the leasing agent spent “every minute” showing apartments, was walking constantly, and climbed a lot of stairs.

On June 26, 2008, Jespersen obtained a note from Dr. Chesshir stating that she could return to work forty hours per week, was not restricted, and could do “some walking.” According to Goldstein, the job description for a leasing agent required constant walking and, with restrictions on her ability to walk, Jespersen could not do long periods of walking that might be required on any particular day. Jespersen also could not do marketing, inspection, and comparison of other properties. Miles testified a leasing agent could perform the job doing some walking, but admitted that, if Sweetwater Ranch was not fully staffed, a leasing agent would be required to do more walking. According to Goldstein, she and Miles agreed that, based on the job description, property needs, and staffing issues, Sweetwater Ranch also needed leasing agents who were available to work overtime. Goldstein and Miles discussed the situation and did not believe that Jespersen had been released to work within the job requirements. CNC did not reinstate Jespersen because she was unable to provide a full release from her doctor.

At some point, Jespersen called Miles and asked if, because Jespersen's position had been filled, she had been terminated. Miles responded that Jespersen was terminated when her doctor said she could not work and Jespersen left the Sweetwater Ranch office. Jespersen indicated her doctor had said she could work only twenty hours per week and Lindsey said she needed two full-time leasing agents. Jespersen then asked what the “paperwork” stated about the reason for her termination. Miles stated she had not seen the paperwork.

Jespersen then spoke to Goldstein and asked if her position had been filled. Goldstein responded that someone had been hired. Jespersen asked if that meant she had been terminated. Goldstein responded that Jespersen had resigned for medical reasons and was eligible to be rehired. Jespersen denied that she had resigned. Goldstein stated that Jespersen had to take medical leave, and CNC considered an employee on medical leave who was not covered by FMLA to have resigned. Jespersen said she did not have to take leave because she was available to work twenty hours a week. Goldstein stated they did not have any part-time positions available.

On July 9, 2008, Jespersen sent an email to Sweetwater Ranch giving notice that she would vacate her apartment on August 9th. On July 11, 2008, Beck saw Jespersen moving her belongings out of the apartment. On July 16, 2008, Beck received notice that Jespersen's check for the July rent had been returned due to insufficient funds. Pamela White, the manager of Sweetwater Ranch in July 2008, and Beck then went into Jespersen's apartment to confirm she had moved out of the apartment. There was trash, but no furniture, in the apartment and there was some damage to the apartment that needed to be repaired. Beck posted a notice inside the front door of the apartment stating Sweetwater Ranch considered the apartment to be abandoned. Jespersen did not respond to the notice. Beck also assessed charges for cleaning and repairing the apartment. On July 24, 2008, Jespersen brought her cable box to Sweetwater Ranch's office. According to Jespersen, she planned to clean the apartmentthat day, but Beck said she could not return to the apartment. At Lindsey's instruction, Beck then had the locks to the apartment changed.

Jespersen filed this suit alleging appellees had...