Union Pacific R.R. Co. v. Loa

• Decision Date: 02 December 2004
• Docket Number: No. 08-02-00076-CV.,08-02-00076-CV.
• Citation: 153 S.W.3d 162
• Parties: UNION PACIFIC RAILROAD COMPANY, Appellant, v. Daniel R. LOA, Appellee.
• Court: Texas Court of Appeals

153 S.W.3d 162

UNION PACIFIC RAILROAD COMPANY, Appellant, v. Daniel R. LOA, Appellee.

No. 08-02-00076-CV.

Court of Appeals of Texas, El Paso.

December 2, 2004.

Joseph L. Hood Jr., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for Appellant.

Enrique Moreno, Moreno and Fry, El Paso, for Appellee.

Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.

OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury verdict in a case arising under the Texas Commission on Human Rights Act ("TCHRA")¹ and claiming damages for the tort of intentional infliction of emotional distress. The jury awarded $800,000 in compensatory damages, $6,000,000 in punitive damages and $460,000 in attorney's fees. The trial court entered judgment in the amount of $800,000 compensatory damages, remitted the punitive damages award to $750,000, pursuant to Texas Civil Practice and Remedies Code² and $460,000 in attorney's fees. The Appellant raised six issues on appeal, challenging the legal and factual sufficiency of the evidence to support the jury's answers to the questions submitted, the amount of damages awarded by the trial court in the final judgment, and the award of attorney's fees. For the reasons stated, we affirm in part, reform in part, and remand in part.

I. ISSUES SUBMITTED ON APPEAL

Appellant has submitted six issues on appeal. In Issue Nos. One, Two, Three and Four, Appellant complains that the evidence supporting the jury's answers regarding workplace harassment under the TCHRA, the claimed tort of intentional infliction of emotional distress, the punitive damages award and the compensatory damages award is legally and factually insufficient to support the findings. Issue No. Five asserts that the court committed error by allowing the jury to determine the amount of attorney's fees recoverable by Appellee and that the evidence is legally and factually insufficient to support the award. Issue No. Six complains that the judgment as entered impermissibly awards Appellee a double recovery, allowing damages under both causes of action asserted below.

II. SUMMARY OF THE EVIDENCE

Appellee, Daniel R. Loa, is employed in the maintenance department of Appellant's, Union Pacific Railroad Company ("Union Pacific"), locomotive facility in El Paso, Texas. Loa has worked for Union Pacific or its predecessor since 1976, and has been at the El Paso facility since 1989. In 1998, Kevin Goewey became one of Loa's immediate supervisors. Shortly thereafter, Loa began to experience harassment perpetrated by Goewey. Goewey exhibited hostile and rude behavior, screamed and yelled at Loa and frequently cursed at him. Goewey often called Loa and other Mexican-American employees "wetbacks," "beaners," and "f____ing wetbacks" regularly using derogatory comments such as, "Mexicans aren't worth anything" and "Mexicans are lazy bums."

Goewey made these remarks almost daily during the time that Goewey was Loa's supervisor. In addition, Goewey made various threats regarding Loa's employment status, including threatening to contact Stephen Slaught, the facility manager, and write Loa up to get rid of him. Loa was afraid of Goewey and feared that Goewey would strike or assault him.

Other Union Pacific employees also experienced problems with Goewey. Several witnesses testified to Goewey's frequent and regular use of derogatory terms such as "wetback," "Mexican wetback," "lazy Mexicans," "f — ing Mexicans," and "crazy Mexican wetbacks." Jose Madrid, a co-worker supervised by Goewey, stated that Goewey's conduct was "a regular everyday thing" and that such comments were made "many times." Madrid testified that Goewey's comments and insults occurred throughout 1998. He reported his problems with Goewey to the facility manager, Stephen Slaught, on an almost weekly basis throughout 1998. Slaught assured Madrid that he would talk to Goewey and "take care of it." Despite Slaught's assurances, the problems with Goewey continued.

R.C. De La Torre also experienced Goewey's harassment. In 1998, he was the local chairman of the Fireman and Boiler's Union and was Loa's union representative. On one occasion, Goewey asked De La Torre, "why are you Mexicans so lazy?" De La Torre also heard Goewey make derogatory statements about older employees and testified that Goewey seemed to pick on older employees that did not speak English very well or those that "couldn't defend themselves." Along with the other local chairmen of the union, De La Torre brought the problems with Goewey to the attention of Slaught prior to December 1998.

The Coalition of Union Chairmans ("the Coalition") had discussions with Slaught in 1998 in an effort to address problems with supervisors and mistreatment of employees. One of the specific problems the Coalition raised with Slaught was Goewey's use of racial and ethnic slurs. Slaught again promised to talk to Goewey and address the situation. On December 10, 1998 as a result of their frustration due to Union Pacific's inaction, the Coalition wrote a letter to Slaught signed by all the local union chairmen. The letter specifically addressed Goewey's use of racial and ethnic slurs and referenced the Coalition's prior complaints.

Slaught claimed that the letter was the first time he became aware of complaints against Goewey for making racial and ethnic slurs. Slaught met with Goewey in December 1998, to discuss the matters raised in the Coalition's letter. Goewey was shown a copy of the letter and he responded that "all the allegations were false." Slaught did not immediately conduct a formal investigation. Slaught did not interview any of the complaining employees and did not attempt to resolve the conflicting statements concerning the racial and ethnic slurs. Slaught decided that Goewey would receive a "manager's conference letter," also known as a reprimand, would write a letter of apology, and would be sent to additional training.

The reprimand was for "poor communication skills" and simply stated that Goewey needed to improve his communication and supervision skills. Goewey's letter of apology was addressed to the chairmans of the Coalition. Goewey apologized for "poor supervisory skills" and for being "overzealous," although he believed that being overzealous was "a good thing." Finally, Goewey was sent to "delta training," which he had previously attended. Goewey testified that he could not remember if EEO policies were covered in the training, but that the training dealt with "communication skills."

The Coalition was not satisfied with the way Slaught handled the situation. Expecting that Slaught would have, at a minimum, interviewed the complaining witnesses, the Coalition continued to complain about Goewey and finally demanded a meeting. Slaught failed to attend the meeting, which the Coalition considered further evidence of Slaught's lack of commitment to addressing the problems. By February 1999, unsatisfied with Union Pacific's response to Goewey's conduct, five employees filed complaints with the Equal Employment Opportunity Commission ("EEOC"). Each complaint alleged national origin discrimination and a pattern of continuing discrimination. Union Pacific filed a separate response to each complaint and in each case, concluded that the allegations were unfounded.

After the EEOC complaints were filed, several employees, including Loa, alleged that they experienced retaliation. The workers testified that they had come under increased scrutiny from Goewey and Slaught.

In November 1999, another charge of discrimination based on Goewey's conduct was filed with the EEOC. Ismael Martinez, who had been interviewed by an EEOC investigator in connection with the previous complaints, filed a complaint. Martinez stated that Goewey had called him an "f-word Puerto Rican." After speaking with the investigator, Martinez testified that Goewey did not like him and that he (Martinez) was subsequently denied a foreman's position.

Despite the complaints against him and only three months after their filing, Goewey was promoted by Union Pacific to the position of locomotive supervisor. Goewey was given authority over Loa's supervisor, so he still had some authority over and contact with Loa and the other employees. The employees who had filed complaints felt disbelief, a sense of betrayal, and considered the promotion a "slap in the face."

In December 1999, Loa filed suit against Union Pacific and Goewey. The petition alleged unlawful discrimination pursuant to Chapter 21 of the Texas Labor Code³ requesting compensatory and punitive damages and injunctive relief. The petition also included a claim for intentional infliction of emotional distress. The jury found that Loa had been subjected to harassment based on his national origin by Union Pacific. The jury also found that Union Pacific had not exercised reasonable care to prevent and promptly correct any harassing behavior and that Loa had not unreasonably failed to take advantage of preventative or corrective opportunities. The jury found that Goewey had intentionally inflicted severe emotional distress on Loa and that Goewey's acts were in the scope of his employment and were ratified by Union Pacific. The jury awarded $800,000 in compensatory damages. The jury found that Union Pacific's conduct was done with malice and that Union Pacific had not made a good faith effort to prevent harassment and awarded $6,000,000 in exemplary damages. Finally, the jury awarded attorney's fees for trial and in the event of an appeal.

The trial court entered a judgment awarding $800,000 in compensatory damages, but limited the punitive damages to $750,000. The trial court awarded $400,000 for attorney's fees and a conditional amount for appeal. The court also entered injunctive and equitable relief enjoining Union Pacific and Goewey from further retaliation or discrimination against Loa. Because Goewey had filed for bankruptcy, claims against him were severed. Union Pacific's ...