Soto v. El Paso Natural Gas Co.

• Decision Date: 27 February 1997
• Docket Number: No. 08-95-00376-CV,08-95-00376-CV
• Citation: 942 S.W.2d 671
• Parties: Emma K. SOTO, Appellant, v. EL PASO NATURAL GAS CO., Appellee.
• Court: Texas Court of Appeals

Page 671

942 S.W.2d 671

Emma K. SOTO, Appellant, v. EL PASO NATURAL GAS CO., Appellee.

No. 08-95-00376-CV.

Court of Appeals of Texas El Paso.

Feb. 27, 1997.

Rehearing Overruled April 16, 1997.

Evelina Ortega, Caballero & Ortega, L.L.P., El Paso, Mara Asya Blatt, El Paso, for Appellant.

Kenneth R. Carr, Kemp, Smith, Duncan & Hammond, P.C., El Paso, Holly Harvel Williamson, Houston, for Appellee.

Before BARAJAS, C.J., and LARSEN and CHEW, JJ.

OPINION

LARSEN, Justice.

Emma Soto brought suit against her employer, El Paso Natural Gas Co. ("EPNG"), for sex discrimination based on claims of sexual harassment, as well as tort claims for assault and intentional infliction of emotional distress. The trial court granted summary judgment for EPNG, which Soto has appealed. We reverse and remand for further proceedings.

STANDARD OF REVIEW

In reviewing the trial court's entry of summary judgment, we employ the well-established standards of Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546 (Tex.1985), which are:

1. The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor.

Nixon, 690 S.W.2d at 548-49. To prevail on summary judgment, a defendant must disprove as a matter of law at least one of the essential elements of each of plaintiff's causes of action, or it must conclusively establish one or more of its defenses. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Bell v. Showa Denko K.K., 899 S.W.2d 749, 753 (Tex.App.--Amarillo 1995, writ denied). Here, EPNG employs both methods of obtaining summary judgment: it urges that we may not consider any evidence that occurred before the limitations period in this case, and it then urges that the incidents that took place within the relevant time period cannot support plaintiff's causes of action as a matter of law.

FACTS

Emma Soto came to work for EPNG as a secretary in the Right of Way ("ROW") department in 1984. The summary judgment evidence, taken in the light most favorable to Soto, established that her work environment included all that follows.

ROW was a "man's world," where offensive, intimidating language and behavior by male employees toward female employees was tolerated, if not encouraged. As early as 1985, Soto complained in writing to Ralph Oppenheim, manager of ROW, about the conduct of ROW employee Tom Trujillo towards women. Soto would see the other women in the office in tears because of conduct by Trujillo and Edwin Nichols, a ROW administrator. Nichols' language towards women was very foul. He would freely refer to women as "cunts" and "bitches" in the presence of ROW director Wayne Stephens, who took no action to stop this abuse. On one occasion, Nichols told a female ROW employee to "go give pinche tiger [Stephens] a blow job because he was in a bad mood." On another occasion, Nichols grabbed Sam Blankenship, another female employee, by the buttocks.

In 1988-89, Soto became aware that Trujillo was calling another female employee, Maria Duarte, at home in the evenings against her wishes. Duarte reported this to ROW manager Alan Zinter, with no results. Around this time, Soto also had a bad experience with Trujillo: While talking with two draftsman in the hall, Trujillo came by, and without explanation, grabbed Soto by the elbow and marched her back to her desk. Soto reported this to her supervisor, Stephens, who said only "that's Tom," and took no other action.

Also in 1988, Soto was diagnosed with breast cancer and underwent a mastectomy. In 1990, she underwent a second mastectomy and reconstructive surgery. During this time, she heard Trujillo referring to her as "lopsided" at a department meeting where supervisors, administrators, and the ROW director were present. These people smiled and laughed at this heartless comment.

In 1990, Trujillo had a conversation with Maria Duarte and Soto in which he urged that Soto move from her job as Zinter's secretary to work for another administrator, Glen Orr, so that Duarte could work for Zinter. Soto declined to agree to this, and told Duarte she should take the job with Orr if it was offered to her, as Orr was a good person to work for. Trujillo began shouting at Soto in Spanish: "salte de aqui," [get out of here] and then "lo que pasa es que Mr. Orr te tiene satisfecha." [What has happened is that Mr. Orr has you satisfied.] Soto was offended by the sexual connotations of this remark, and reported it to Zinter, her supervisor. Zinter merely told her to ignore Trujillo and walk away from him as he would not listen to anyone. The record does not reflect any corrective action taken by EPNG personnel to stop Trujillo's lewd conduct towards women employees after this, and his offensive behavior continued.

In November 1992, Trujillo passed Soto's cubicle and said in Spanish, "tu eres como la pila de agua vendita, todos te la ..." and then made a dipping gesture with his hand. Soto testified that this comment had very pejorative sexual connotations, to the effect she was like a vessel of holy water in which everyone dipped his hand, meaning that anyone wanting sexual relations with Soto could have her. She did not report this incident at the time it happened. Her testimony was that she had become discouraged by the lack of response to her earlier complaints. In March 1993, EPNG promoted Trujillo to administrator in ROW.

As part of her job duties, Soto typed labels for ROW acquisition projects. Trujillo would request that she do this for his projects, although another female employee, Pat Lavender, was his secretary. On May 3, 1993, Trujillo asked Soto to type a label for him. Soto told him she was quite busy, had 39 labels to type before his, and that in addition, she was answering the phones. She suggested he ask Lavender to type the label. Trujillo angrily said no, threw the label on Soto's desk, and told her again to type it. The next day, Trujillo came back to the file room and asked about the label. Soto responded she had many labels to type and was very busy. Trujillo then bent down, put his face in hers, yelled "I asked you," and at the same time, leaned his hand into her left breast. ¹ Soto was so shocked she felt as if she had lost consciousness. Trujillo continued to yell at her but Soto did not comprehend what he was saying. Trujillo then threatened her, saying he would tell Director Stephens she had talked back to an administrator and told her, "I better not ever catch you fooling around because I'll take care of you." Within a day, Soto went to EPNG's Human Resources department and reported Trujillo's assault.

EPNG's Human Resources department investigated Soto's charges. Although unable to directly corroborate her complaint, the investigator came to the conclusion that Trujillo's conduct was abusive and intimidating toward the women in ROW, creating a hostile work environment. Trujillo was warned not to talk about the complaint or the incident with Soto. He nevertheless went around ROW laughing and boasting that he had "set Human Resources straight" on Soto's complaint. He was heard making remarks such as "why would I want to touch her plastic boob?" Trujillo, despite being told to stay away from Soto, would come by her cubicle, staring and laughing at her. Trujillo's friend, Nichols, would also come by her station, make ugly faces at her, and gesture "Three Stooges" style as if to poke her in the eyes. Nevertheless, EPNG took no disciplinary action against Trujillo, and Nichols' abusive language towards women continued unabated. Trujillo had a meeting with Stephens, Zinter, and a Human Resources investigator after Soto's complaint. Trujillo's account of this meeting was that Zinter told him he "had been doing--getting along real great and doing a real good job and asked to continue to do so." According to Trujillo, Zinter also complimented him on his working relations with Pat Lavender. "[Trujillo's] understanding was that they had not found anything to support Ms. Soto's allegations." He did acknowledge that the meeting included discussion of sexual harassment charges, and under the circumstances, he was told to stay away from Soto.

Soto's story is echoed by the experiences of other women in the ROW department. One woman employee stated ROW management is feared by employees, and that they were instructed they could not go to Human Resources with their problems unless they went through ROW management first. Four months after Soto's complaint, Pat Lavender lodged a complaint against Trujillo with ROW manager Alan Zinter. She stated that Trujillo was calling her a "Northeast whore," and talking with other male employees about her personal life. Zinter's solution was that Lavender should talk it out with Trujillo. Lavender then went to Human Resources, complaining about Trujillo and about Nichols' abusive language. She reported that Trujillo had a history of abusive behavior: He had called her "slut" to her face early in her employment at EPNG, which she had reported but which had not been pursued. Trujillo had also told Lavender that all the secretaries in ROW were "whores." Human Resources investigators noted that ROW management responded to complaints about Trujillo by saying, "Tom's just that way." The investigators also noted that "Trujillo's abrasive, abusive and intimidating behavior continues to create a hostile environment...."

Soto believed that her work assignments became heavier and that she was ordered to do work that had no purpose in retaliation for her complaints to Human Resources. Soto was told by Nichols in January 1995 that she would receive a promotion. As time passed and no promotion was forthcoming, she...