Valdez v. Church's Fried Chicken, Inc.

• Decision Date: 30 March 1988
• Docket Number: Civ. A. No. SA-86-CA-262.
• Citation: 683 F. Supp. 596
• Parties: Belinda VALDEZ and Jorge Torres, Plaintiffs, v. CHURCH'S FRIED CHICKEN, INC., Marcial Leal, Individually, Jerry Estrada, Individually, Abel Salazar, Individually, and Jerry Bailey, Individually, Defendants.
• Court: U.S. District Court — Western District of Texas

683 F. Supp. 596

Belinda VALDEZ and Jorge Torres, Plaintiffs, v. CHURCH'S FRIED CHICKEN, INC., Marcial Leal, Individually, Jerry Estrada, Individually, Abel Salazar, Individually, and Jerry Bailey, Individually, Defendants.

Civ. A. No. SA-86-CA-262.

United States District Court, W.D. Texas, San Antonio Division.

March 30, 1988.

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Peter Torres, San Antonio, Tex., for plaintiff Belinda Valdez.

Warren Weir, Weir & Alvarado, San Antonio, Tex., for plaintiff Jorge Torres.

Larry Macon and Jesse Castillo, Cox & Smith, Inc., San Antonio, Tex., for defendants Church's Fried Chicken, Abel Salazar, Jerry Bailey, and Marcial Leal.

George Brin, Brin & Brin, San Antonio, Tex., for defendant Jerry Estrada.

MEMORANDUM ORDER

PRADO, District Judge.

This lawsuit presents bizarre and troubling problems to the Court, both factually and legally. The evidence adduced at trial included allegations of surreptitious recording of conversations, false written statements created by a party plaintiff and signed as the statement of an impartial witness, a vicious child custody battle where the bargaining chips were continued participation in the lawsuit for an award of custody, and allegations of sexual harassment and a cover-up by top management officials at Church's Fried Chicken. In addition, the lawyers representing the parties got involved in the mud slinging. Numerous motions for sanctions were filed by the Defendants, including one raised during the trial itself, and heated charges and counter-charges of dishonesty occurred during the course of the trial. A final factor complicating the trial was conflict of interest problems on both sides of the lawsuit which necessitated the 11th hour withdrawal and substitution of attorneys.¹

Despite this heated skirmishing the case proceeded to trial on November 30, 1987 and was concluded December 7, 1987. This memorandum opinion constitutes the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

On its face, the case tried seems simple enough. The two remaining party plaintiffs,² Belinda Valdez and Jorge Torres, bring suit pursuant to Title VII for sexual harassment and wrongful termination, along with various pendent state law claims, against Church's Fried Chicken as a corporation, and Jerry Bailey, Jerry Estrada, Abel Salazar and Marcial Leal individually. For purposes of clarity the Court will address the claims of each Plaintiff in order.

I. CLAIMS OF BELINDA VALDEZ

A. Retaliation Under 42 U.S.C. § 2000e-3

In the Agreed Pretrial Order filed November 18, 1987, Plaintiff claims she was terminated for filing a charge with the Equal Employment Opportunity Commission. This claim was abandoned by Plaintiff at the trial's commencement. Defendant Church's Fried Chicken has filed a separate motion seeking sanctions under Rule 11 of the Federal Rules of Civil Procedure for Plaintiff's failure to drop this logically impossible³ claim at an earlier time. The Court will address this request for sanctions by separate order.

B. State Law Assault

1. Liability of Jerry Estrada

Although the allegations in the Pretrial Order are not nearly as clear as they should be, Defendants were on notice that the same alleged conduct which gives rise to the sexual harassment claim under Title VII is also the basis for Plaintiff's state law assault claim against Jerry Estrada individually. Defendant Church's strenuously objects to Plaintiff's presentation of the assault claim at trial on the grounds that this claim was not specifically raised in Plaintiff's Fourth Amended Complaint or in the Pretrial Order. Defendant's cite Mapco, Inc. v. Pioneer Corp., 447 F.Supp. 143 (N.D.Tex.), aff'd, 615 F.2d 297 (5th Cir. 1978), for the proposition that failure to include a claim in any of the pleadings or in the Pretrial Order mandates a denial of the claim. While there is mandatory language in the opinion, the Mapco case relies principally on Marble v. Batten & Co., 36 F.R.D. 693 (D.D.C.1964). In Marble, the court denied amendment of the pretrial order at trial and stated that "it is only in the exceptional case that the pretrial order may be amended after the trial has begun." Id. at 695. Despite this almost compulsory language, the rationale for Marble's holding is that Rule 16 is designed to prevent prejudice to the defendant because of lack of notice or unfair surprise. Rule 16(e) of the Federal Rules of Civil Procedure provides in part that "the order following a final pretrial conference shall be modified only to prevent manifest injustice." The decision to allow any modification of the final pretrial order is within the sound discretion of the district court. E.g., Allen v. United States Steel Corp., 665 F.2d 689, 696 (5th Cir.1982) (decision to strike claim not abuse of discretion).

In this case there can be no serious argument that Defendants did not have notice of the gravaman of Plaintiff's state law assault claim or were unfairly suprised at trial. Although Plaintiff failed to specifically plead the claim and may still be subject to sanctions under Rule 16(f), the factual allegations which support Plaintiff's Title VII claim are identical to the facts supporting the assault claim.⁴ The Court finds that Defendants' readiness at trial to controvert the factual allegations of the Title VII claim meant they were also prepared to defend against the assault claim. Furthermore, before the trial commenced, the Court advised the Defendants that it would allow them to re-open the record should they believe any trial amendments to Plaintiff's claims caught them by surprise. None of the Defendants have taken advantage of this offer. In terms of the legal issues presented by the assault claim, which are different from the Title VII claim, the Court has invited the parties to submit extensive post-trial briefing on a variety of issues and the parties have done so. In this case there can be no finding of unfair surprise or lack of notice of the assault claim. All of the cases cited by Defendant Church's are distinguishable in that they do not involve attempts to add amended claims which have the identical factual underpinning to claims properly raised in the pleadings and the pretrial order. See also, Daniels v. Board of Education of Ravenna City School District, 805 F.2d 203, 210 (6th Cir.1986) (disparate impact claim not allowed where case tried on disparate treatment theory). The Court finds that it would be manifestly unjust to jettison half of Plaintiff's case for the failure of her attorney to properly plead the assault claim.

Plaintiff was employed by Church's Fried Chicken from December 31, 1984 until March 22, 1985, at Store # 606, Church's downtown location on Houston Street.

Defendant Jerry Estrada was employed during this time period as "team leader." The Court finds that Jerry Estrada worked 3-4 nights each week when no managers were present and that Belinda Valdez was often working during this shift. Although Plaintiff testified at trial that Defendant Estrada was an assistant manager and fired her from her job as a "team member" at Store # 606, the Court does not find this testimony to be credible. No other witness corroborated Plaintiff's testimony that Jerry Estrada was actually an assistant manager at any time or held himself out to be an assistant manager by wearing a manager's badge.

Under Texas law, a defendant is guilty of civil and criminal assault when he "intentionally or knowingly causes physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative." Moore's Inc. v. Garcia, 604 S.W.2d 261, 264 (Tex.Civ.App.-Corpus Christi 1980), writ ref. n.r.e.; Vietnamese Fisherman's Association v. Knights of Ku Klux Klan, 518 F.Supp. 993 (S.D.Tex.1981).

In the Pretrial Order, Plaintiff alleges that "Jerry Estrada pulled her pants down in the restroom and exposed his genitals to her and attempted to have sexual intercourse with her without her consent and over her protest." Agreed Pretrial Order at 5. If true, these allegations quite obviously constitute an assault under Texas law.

One of the many difficulties the Court faces in reaching a decision in this case is sorting our diametrically conflicting testimony from interested witnesses. The court in Heelan v. Johns-Manville Corp., 451 F.Supp. 1382, 1385 (D.Colo.1978) was faced with similar difficulties in evaluating conflicting testimony. This Court has also considered as many relevant factors as possible in making its credibility determinations, including a witness' motive, memory, and demeanor on the witness stand.⁵ This Court has carefully weighed the testimony of all witnesses in attempting to reconstruct the relevant events which occurred at Store # 606 in 1985.

Credibility determinations in this case are made even more difficult by the fact that some witnesses are worthy of belief on some issues and completely incredible on others. This problem is particularly acute when assessing the testimony of Belinda Valdez.

At trial it was evident to the Court that Belinda Valdez lied about several critical facts. Defendant's counsel, Mr. George Brin, established to the Court's satisfaction that Defendant's Exhibit LL, which purports to be a statement from an impartial party who witnessed Jerry Estrada sexually harass Belinda Valdez at Store # 606, is actually a forgery done in Plaintiff's own hand. Furthermore, two witnesses, Bertha Chapko and Rebecca Martinez, testified that Plaintiff approached them while they were staying at the Bexar County Women's Shelter and asked them to sign false statements accusing Jerry Estrada of sexual harassment. Although Plaintiff continued to deny at trial that she solicited false statements...