Southwestern Bell Mobile Systems, Inc. v. Franco

• Decision Date: 21 August 1997
• Docket Number: No. 13-95-322-CV,13-95-322-CV
• Citation: 951 S.W.2d 218
• Parties: SOUTHWESTERN BELL MOBILE SYSTEMS, INC., Appellant, v. Odilia FRANCO and Patricia Mendez,Appellees.
• Court: Texas Court of Appeals

Page 218

951 S.W.2d 218

SOUTHWESTERN BELL MOBILE SYSTEMS, INC., Appellant, v. Odilia FRANCO and Patricia Mendez,Appellees.

No. 13-95-322-CV.

Court of Appeals of Texas,

Corpus Christi.

Aug. 21, 1997.

Rehearing Overruled Sept. 11, 1997.

Kathryn F. Green, Kleberg Law Firm, Corpus Christi, for Appellant.

William J. Kolb, Corpus Christi, Portia J. Bott, Dallas, for Appellees.

Before the court en banc.

OPINION

YANEZ, Justice.

Southwestern Bell Mobile Systems, Inc., appeals from a judgment, rendered on a jury verdict, that it is liable to two former employees for intentional infliction of emotional distress and retaliatory termination under the Commission on Human Rights Act, TEX. LAB.CODE ANN. § 21.055 (Vernon 1996) (hereinafter "CHRA"). ¹ By five points of error, appellant challenges the sufficiency of the evidence, the attorney's fees, reinstatement, and punitive damages awarded, and the admission of particular documents into evidence. Appellees raise a contingent cross-claim. We affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

Odilia Franco and Patricia Mendez, appellees, were employees of Southwestern Bell Mobile Systems, Inc. (SBMS) at its Corpus Christi location. In the course of their employment as customer service representatives, both women were recipients of unwelcome comments of a sexual nature from the company's director of operations at the Corpus Christi office. In May 1990, Franco was fired because of absenteeism. She then informed the president of SBMS of sexual harassment she had endured from the director of operations in Corpus Christi before she was discharged, which led SBMS to investigate the conduct of this director of operations. Mendez, as did other employees, participated in this investigation. Mendez reported that she had witnessed inappropriate conduct of a sexual nature at work toward both her and Franco by the director of operations. This director of operations was fired a few weeks later. Franco was then re-hired on a probationary basis, in exchange for "let[ting] go of [her] attorney." On November 1, 1990, however, both Franco and Mendez were terminated from SBMS for allegedly misappropriating air-time credit certificates and defrauding SBMS. Franco and Mendez subsequently filed charges of unlawful discrimination with the Corpus Christi Human Relations Commission, an arm of the Texas Commission for Human Rights, which led to investigations into SBMS by the United States Equal Employment Opportunity Commission ("EEOC").

By their original petition, filed March 27, 1991, Franco and Mendez filed suit against SBMS. Franco and Mendez alleged that SBMS was liable to them for retaliatory termination, intentional infliction of emotional distress, and defamation. On November 13, 1991, Franco filed another original petition, pursuant to her receipt of authorization to file a civil rights suit from the Commission on Human Rights. In the petition, she claimed that SBMS terminated her in May 1990 on the basis of unlawful discrimination and then, following her reinstatement, terminated her again in November 1990 in retaliation for the claim of unlawful discrimination she filed after being discharged in May.

A jury found that SBMS did not make false and defamatory statements against either Franco or Mendez. The jury, however, did find that the company retaliated against both women for complaining of sexual harassment and that it intentionally inflicted emotional distress upon them. The jury awarded Franco and Mendez zero damages for the retaliatory discharge, but awarded Franco $25,500 and Mendez $20,000 as compensation for the inflictions of emotional distress. The jury also awarded Franco punitive damages in the amount of $20,000 and Mendez punitive damages in the amount of $25,500, pursuant to the intentional infliction of emotional distress findings. Franco and Mendez then filed a motion for the court to disregard the jury's zero-damages findings and enter judgment consistent with the jury's verdict.

By its judgment, signed on April 3, 1995, the trial court ordered that Franco recover a total of $68,250 from SBMS, plus $22,750 in attorney fees, and that she be reinstated with SBMS as a collection representative. The court ordered that Mendez also recover $68,250 from SBMS, plus $22,750 in attorney's fees. Subtracting the jury awards from the total damages ordered in the judgment, the court-ordered damage awards were $22,750 for Franco and $22,750 for Mendez. Costs also were adjudged against SBMS.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

By its first point of error, SBMS challenges the legal and factual sufficiency of the evidence for the jury's finding that SBMS is liable to Franco and Mendez for intentional infliction of emotional distress. SBMS emphasizes that there were women employees who both complained of sexual harassment and were not subsequently discharged, and that the perpetrator of the harassment was, in fact, terminated, so that no employee had to work in an uncomfortable environment. Franco's and Mendez's response basically is that the unchallenged retaliatory termination finding should also be sufficient for a finding of intentional infliction of emotional distress.

In reviewing "no evidence" points of error, we must consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). If there is any probative evidence to support the finding, the point must be overruled. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). In reviewing the "insufficient evidence" point, we must examine all of the evidence supporting and contrary to the jury's finding and may set it aside only if the evidence standing alone is so weak as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If we reverse a finding for insufficient evidence, we must detail the evidence relevant to the matter under consideration and explain why the jury's finding is factually insufficient. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The jury, as factfinder, is the judge of the credibility of witnesses and weight to be accorded their testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951); Downen v. Texas Gulf Shrimp Co., 846 S.W.2d 506, 511 (Tex.App.--Corpus Christi 1993, writ denied). One party does not have to negate with evidence the evidence presented by the other side; the jury may simply disbelieve the evidence. Downen, 846 S.W.2d at 511.

Under Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993) (citing the RESTATEMENT (SECOND) OF TORTS § 46 (1965)), the elements of an action for intentional infliction of emotional distress are (1) the defendant intentionally or recklessly acted, (2) the conduct was extreme and outrageous, (3) this action caused the plaintiff emotional distress, and (4) the emotional distress suffered by the plaintiff was severe. Liability for outrageous and extreme conduct may be found "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Twyman, 855 S.W.2d at 621 (continuing to cite the RESTATEMENT); see also Mattix-Hill v. Reck, 923 S.W.2d 596, 597 (Tex.1996); Shaheen v. Motion Industries, Inc., 880 S.W.2d 88, 92 (Tex.App.--Corpus Christi 1994, writ denied). The target of appellant's challenge to the jury's finding being the requisite "extreme and outrageous conduct," we will examine the record for sufficient evidence of such conduct.

Franco did not make her sexual harassment complaint to SBMS in her capacity as an active employee. Rather, she reported the harassment to SBMS after being terminated for absenteeism in May 1990. This led to the sexual harassment investigation by SBMS in May 1990, in which Mendez participated and after which the director of operations was replaced. Franco then was offered reinstatement and she accepted. Thus both Franco and Mendez were employees of SBMS over the summer and into the fall of 1990 before they both were fired on November 1, 1990. If there is "extreme and outrageous" conduct in this case, it therefore must be the termination of Franco and Mendez on November 1, 1990, which, they each allege, was in retaliation for their sexual harassment complaints against SBMS. Indeed, in their appellate brief, Franco and Mendez note that "all of the facts and circumstances which relate to the retaliatory discharges also relate to the causes of action for intentional infliction of emotional distress." ² Under the CHRA, an employer commits an unlawful employment practice if it retaliates against a person who, under the statute, opposes a discriminatory practice, makes or files a charge, files a complaint, or participates in any manner in an investigation, proceeding, or hearing. TEX. LAB.CODE ANN. § 21.055.

Just after Franco was terminated in May 1990, Mendez went to speak with a personnel officer for SBMS, in order to vouch for both Franco's claims of sexual harassment and her competence as an employee, and to urge an investigation of the director of operations at SBMS. In May 1990, Mendez participated in the SBMS investigation of the director of operations. The director of operations was dismissed thereafter. Franco, as previously noted, was rehired, but both she and Mendez were terminated several months later.

SBMS presented evidence in support of its claim that it had a bona fide reason for terminating Franco and Mendez on November 1, 1990, i.e., both women misappropriated company funds, particularly the air-time credit certificates, and thereby defrauded SBMS. The testimony from various witnesses established that these certificates were...