Mackey v. U.P. Enterprises, Inc.

• Decision Date: 30 October 1996
• Docket Number: No. 12-94-00011-CV,12-94-00011-CV
• Citation: 935 S.W.2d 446
• Parties: Glenda MACKEY, Appellant, v. U.P. ENTERPRISES, INC., d/b/a Taco Bell, Appellee.
• Court: Texas Court of Appeals

Page 446

935 S.W.2d 446

Glenda MACKEY, Appellant, v. U.P. ENTERPRISES, INC., d/b/a Taco Bell, Appellee.

No. 12-94-00011-CV.

Court of Appeals of Texas,

Tyler.

Oct. 30, 1996.

Bob Whitehurst, Tyler, for appellant.

John F. Bufe, Deborah O. Evans, Tyler, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HADDEN, Justice.

This is an appeal of a summary judgment granted in favor of U.P. Enterprises, Inc., d/b/a Taco Bell ("UPE"). Glenda Mackey ("Mackey") sued her employer, UPE, two of its managers, Ron Smith and Greg Johnson ("Smith" and "Johnson"), and Taco Bell Corporation ("TBC"), the franchisor, alleging eight separate causes of action. Mackey's underlying allegations were that she was sexually harassed by Smith and Johnson. The trial court granted UPE's motion for summary judgment on all causes of action and severed Mackey's causes of action against UPE from the remainder of the case. Mackey appeals the decision of the trial court, raising ten points of error. We will affirm in part and reverse and remand in part.

UPE's motion for summary judgment was supported by the affidavit and deposition of Richard Upshaw ("Upshaw"), vice-president and Director of Operations of UPE, the deposition of Mackey, and the depositions of two other employees, Roxie Hall ("Hall") and Jessica Jones ("Jones"). From this evidence, it appears that UPE, a franchisee of TBC, owns and operates several Taco Bell restaurants in Tyler, Smith County, Texas. In November 1990, UPE employed Mackey as an hourly wage employee in one of its restaurants where she was under the supervision of Smith. She was later transferred to a second restaurant where she was under the supervision of Johnson. Mackey was terminated in August 1991. UPE denies that any sexual harassment towards Mackey took place, but that if it did, it was totally unauthorized, unexpected, and unforeseen by UPE. Furthermore, UPE claims that Mackey's injuries, if any, were sustained in the course of her employment and were, therefore, barred by the exclusive remedy provisions of the Texas Worker's Compensation Act ("the Act"). ¹ UPE's summary judgment proof also shows that during her employment with UPE, Mackey received several written reprimands for failure to report to work as scheduled and for rudeness to customers. UPE claims that it was for these reasons that her employment was terminated.

Mackey's summary judgment proof shows that she was sexually harassed by Smith and Johnson while they were employed by UPE, and that she was allegedly terminated from her employment because she would not give in to their sexual demands. Mackey claims that the Texas Worker's Compensation Act was not applicable to her because the sexual assaults by Smith and Johnson were personal to her and that her injuries were not received in the course of her employment. ² The summary judgment proof includes the following affidavit by Mackey:

...

Greg Johnson and Ron Smith made their work policies clear to me, after approximately one month of employment. First, Ron Smith, and then, later, Greg Johnson asked me to have sexual intercourse and perform sexual favors for them. Frequently, Ron Smith and Greg Johnson used slang terms such as "let me touch you up". When I refused them, my scheduled hours were systematically reduced. Their I felt pressured to give in to their demands for sexual favors in order to keep working at Taco Bell. At the time of my employment, I did not have a reliable form of transportation. One afternoon around mid-February of 1991, when I was working at the Gentry store, Ron Smith offered to give I(sic) a ride home if I would pay him $2.00. I thanked him and explained that I would pay Ron Smith once I got home because my money was at home. I got into the car and Ron Smith started for my home across town. After a few minutes Ron Smith said that he did not want the money but instead wanted sex. I said no, that I would rather pay. For the next several minutes Ron Smith and I argued about the method of payment. I would not give in. Furious, Ron Smith pulled over to the side of a very busy road and ordered me from the car. Ron Smith then told me that if I would not have sex with him, I could walk. Although it was several miles, I walked home.

requests for sexual favors happened with regularity. At one point I was informed by Ron Smith that, "if I did it, I'd get more hours."

After that incident Ron Smith would brush up against me "accidentally". Ron Smith also started calling me such names as "fat droopy titty", "sticky", "slouchy", and "sorry" in front of other workers at TACO BELL.

Near the first of March 1993, Ron Smith touched my breast and asked me if I was sure I wanted to be transferred to another store. My response was "yes".

My transfer to TACO BELL store on Troop (sic) Highway was intended as a punishment or the result of a bet between Ron Smith and Greg Johnson, that is that Greg bet Ron that he could have sexual intercourse with me. Once at the Troop (sic) store, the harassment continued with even more frequency.

In April of 1991, I caught Greg Johnson and employee Jessica Jones engaging in oral sex. I was then called into the office by Greg Johnson and he told me not to tell anyone or he would "fire my ass if talked". From April of 1991 to August of 1991, the following incidences occurred [sic]:

(1) Greg Johnson would remark to me that he wanted to "touch it up"

(2) Greg Johnson would "accidentally" brush up against me touching my breasts and buttocks.

(3) Greg Johnson called me "shithead", "stupid ass", and "fat ass" in front of some of the workers of Taco Bell.

At one point Greg Johnson arranged for me to be alone with him in the store. At this time Greg Johnson demanded sex. When I denied Greg Johnson, I received a written reprimand. It was obvious the more I denied Greg Johnson, the more I was penalized. In addition to the above, Greg Johnson would belittle me in front of co-workers and customers by criticizing my work and by calling me names.

Regardless if a female worker complied or not Greg Johnson would verbally and physically harass all the females at work. Greg Johnson would ask personal questions about my home life and my sex life. Greg Johnson would come up to me and touch me on the breasts or fondle my buttocks. Greg Johnson would ask me what I thought of other women's physical attributes. I had all of these incidents happen to me from April of 1991 to August of 1991.

In July/August of 1991 I made arrangements for Greg Johnson to pick me up at home for a ride to work, because I had no adequate means of transportation. Payment was never discussed and I believed that Defendant had given other employees rides before. When Greg Johnson, in this TACO BELL uniform, came to my door I let him in. I was dressed in my TACO BELL uniform and ready to go to work. Greg Johnson informed me that we were going to have sex. I told him no. His response was "that if I did not have sex with him, he would not take me to work." Greg Johnson also said that if I was late for work he would fire me. I looked at the clock and there was only 15 minutes until I was required to be at work. There was not enough time for me to walk or even call a cab. I felt I had to comply, or I Around the end of August of 1991, I spoke to another ("TACO BELL") manager on the phone, by the name of Jessica Jones. Jessica Jones had "worked" her way up through the store to become a manager.

would lose my job. If I lost my job I couldn't take care of my kids. I believed that I did not have a choice and that Greg Johnson knew that. I felt like I was raped. When I arrived at work I was emotionally upset and crying.

During this conversation, I proceeded to tell Jessica Jones that Greg Johnson, a married man, had caused a female employee to become pregnant. I also told Jessica Jones of the stressful working situation and the constant sexual demands. I also informed Roxie Hall (manager) of what happened, who laughed and said she would do something about it. At the next store meeting, Greg Johnson informed the employees, that whatever happened in his store was to remain there or else. Greg Johnson was staring directly at me, when this was said. I was fired later that day.

I unsuccessfully attempted to commit suicide three times since this incidence. I have been forced to go on welfare, to take care of my children, when I didn't believe in welfare before this.

The sexual harassment and assault as stated above did not have any connection to my employment in serving food, taking money for food, cleaning up the store, or other duties that I was assigned. I am not now, nor have never claimed in any proceeding that I had been injured in the course of my employment or that the sexual harassment and assault arose out of or originated in my employment. I have never filed a claim for Workers' Compensation benefits with the Texas Industrial Accident Board. The behavior of these two managers as described above was personal toward me, and not related to my job as set out above.

In her suit against UPE, Mackey alleged eight separate causes of action as follows:

1. Assault;

2. Intentional infliction of emotional distress;

3. Negligent infliction of emotional distress;

4. Sexual harassment;

5. Tortious interference with contract;

6. Wrongful discharge;

7. Slander; and

8. Negligent supervision, training, and evaluation of Smith and Johnson.

The trial court granted a global summary judgment, and, therefore, summary judgment was granted against Mackey on all eight of her causes of action. Furthermore, since the trial court did not specify the grounds upon which it granted summary judgment on each of Mackey's causes of action, it was Mackey's burden to show that each independent argument alleged by UPE in its motion for summary judgment was insufficient to support the trial court's order. Summary judgment will be affirmed if any of the theories advanced by UPE are meritorious. Insurance Co. of...