BOB PEMBERTON, Justice.
Twigland Fashions, Ltd. ("Twigland") appeals a judgment awarding one of its former store managers, Nemia Miller, $12,000 in actual damages on a hostile-work-environment theory of gender-based job discrimination through a supervisor's sexual harassment. See Tex. Lab.Code Ann. §§ 21.051, .2585 (West 2006); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752-54, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Hoffmann-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 n. 5 (Tex. 2004). In light of that award, the judgment also awarded Miller, as the prevailing party, over $150,000 in attorney's fees. See Tex. Lab.Code Ann. § 21.259 (West 2006).
In five issues, Twigland asserts that (1) the evidence was legally insufficient to support a jury submission or finding of its liability under a hostile-work-environment sexual-harassment theory, or it was at least factually insufficient to support that finding; (2) Twigland conclusively established its Faragher/Ellerth affirmative defense or that the jury's failure to find for Twigland on that issue was against the great weight and preponderance of the evidence; (3) Miller failed to present legally or factually sufficient evidence that she incurred any compensatory damages; (4) the district court abused its discretion in admitting certain evidence; and (5) the evidence was legally and factually insufficient to support the attorney's fee award given the amount of actual damages awarded. Because we agree with Twigland that the evidence was legally insufficient to support submission of Miller's hostile-work-environment theory of liability, we will reverse and render judgment that Miller take nothing on her claims.
Appellant Twigland is a women's apparel retailer that operates a chain of stores
Before her termination, it is undisputed that Miller never claimed to anyone at Twigland—or any other person, for that matter—that she had been sexually harassed on the job. Following her termination, however, Miller obtained counsel, who, on March 14, 2006, wrote Twigland's legal department advising of his retention in connection with Miller's termination, "including but not limited to claims of sexual harassment and retaliation, and related claims." On March 28, Miller filed a charge of discrimination with the Austin Equal Employment/Fair Housing Office accusing Alonzo of having sexually harassed her between November 9 and December 28, 2005, the final seven weeks of her tenure at Twigland. According to Miller, Alonzo "would question me regarding my personal, sexual life and experiences," "professed his love for me and told me that I owed him kisses and hugs," and, "[o]n one occasion, . . . came up behind me and grabbed me and wrapped his arms around me and pressed his body against mine." Miller further charged that she "avoided his actions whenever possible and made every effort not to be left alone with him." She attributed her eventual termination— which, she claimed, came "[a]fter approximately two weeks of avoiding" Alonzo—to "retaliation for denying his sexual advances towards me."
After exhausting her administrative remedies, Miller sued Twigland alleging that her firing constituted gender-based employment discrimination through quid-pro-quo sexual harassment, in violation of the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab.Code Ann. § 21.051; Ellerth, 524 U.S. at 752-54, 118 S.Ct. 2257.
Before trial, Miller non-suited her assault claims and proceeded to trial under her TCHRA claims against Twigland. Miller relies on the following evidence in support of the verdict and judgment.
According to Miller, Alonzo's sexually harassing conduct was preceded and accompanied by what she regarded as increasing unjustified criticism of her job performance. She testified that toward the end of 2005 she perceived that Alonzo "would pick on me over little, petty things" related to her store's operations when, at least in her view, there was no merit to his complaints.
Miller claimed that at unspecified times during October or November 2005, Alonzo had made "very light, physical contacts" with her "at times when behind the counter would be overcrowded and I would be taking care of customers" in her store. According to Miller, Alonzo, "would just touch my waist as he walk[e]d past me from behind and sort of like brushed against my behind." Miller acknowledged that "I didn't think anything of it at all" when these contacts occurred. Miller also testified that Alonzo would have her leave the store and accompany him to the Highland Mall food court, where the two would conduct their business meetings because her "store at the time didn't have an office." She complained that during these meetings—which, according to Miller, could last "for hours" because "[w]e would disagree on certain things"—Alonzo "would just put his hand on mine."
Alonzo's actionable sexual harassment, in Miller's view, began on November 9— one week after her November 2 reprimand—while she and Alonzo were conducting one of their business meetings in the Highland Mall food court. According to Miller, "[w]e were discussing other issues that we were having with some of my associates [store employees]," when Alonzo "pause[d] and just suddenly busted out and just asked me, `So how many men have you slept with Nemia?'" Miller professed "total shock" at the question, but eventually answered it because she "was afraid I was going to lose my job and I
Miller also testified that Alonzo "said that he wanted to be friends outside work and for me not to tell anyone, that I have to be quiet about it," adding that remaining quiet was "important because the only friend he's ever had outside work was Anna." "Anna," the evidence reflected, was a former store manager who had been promoted under Alonzo's supervision. According to Miller, she understood Alonzo's remarks to mean that "I was going to get promoted eventually and succeed with the company" if she would agree to be friends with Alonzo outside of work, and if not, "that I was going to lose my job and he was going to make me look bad."
Miller claimed that she was "humiliated" and "completely appalled" by the events during this meeting, to the extent that she "woke up in the middle of the night," and for the first time in her life, began a diary to record her experiences. Twigland introduced the diary into evidence. It is handwritten, with entries that purport to be contemporaneous accounts of events occurring on November 9 and 11 and December 7, 8, 15, and 28, 2005. These dates generally correspond to the timing of incidents with Alonzo to which Miller testified at trial, although the diary omits various alleged acts and details Miller revealed in her courtroom account.
Miller further testified that during a phone conversation at or around the same time—November 11, her diary indicates— Alonzo informed her that she "owed" him "a hug" for failing to comply with instructions from his superior concerning the placement of balloons in her store to alert customers to a sales promotion.
Following Alonzo's November 9 store visit and November 11 phone conversation, the next alleged act of which Miller complained occurred on December 7. On that day, Alonzo visited Miller's store, accompanied by Twigland president John "Mr. John" Won. Won would periodically visit the store to evaluate first-hand its cleanliness, presentation, and employee performance.
On the following day, December 8, which had been one of her scheduled days off, Miller testified that Alonzo called her and told her to meet him at her store at a designated time.
A week later, on December 15, Alonzo visited Miller's store again, accompanied by Debe Lavarius, Alonzo's immediate superior. In her diary, Miller acknowledged that "Debe was furious" because Miller had permitted members of her lower-management team to take time off during the holiday season, leaving the store shorthanded during one of its busiest times of the year. Miller wrote that this was one of the occasions in which Alonzo counted "kisses":
(Ellipses in original.) At trial, Miller recounted that Alonzo's exact statement, made within hearing of others, was that she "owed him six" because she had understaffed her store during the holiday season.
Miller was terminated three days after a Christmas Day incident in which she had failed to promptly respond to a cell-phone call from Brinks, the company that monitored the security alarm at her store, notifying her that the alarm had been triggered.
Alonzo denied ever harassing Miller, and Twigland attempted to raise the inference
Twigland also elicited admissions from Miller that Alonzo had never sexually solicited her, asked her to have sex with him, made a sexual advance toward her, or actually attempted to kiss her. She further conceded that despite Alonzo's alleged conduct during November and December 2005, it had not impacted her job performance and that, to the contrary, she perceived her performance had bested that of Alonzo's other store managers and was actually improving. In fact, Miller's store was named Twigland's "Store of the Month" for December 2005. On the other hand, Miller maintained that Alonzo's conduct made it "harder" for her to do her work while he was in the store, elaborating, "Whenever he was in the store I would inquire about what he's going to do next, what's going to happen now. And I would constantly think about that and worry about that, that I wasn't effective at all with work." However, Miller conceded that these impediments arose only "[w]hen [Alonzo] was in the store, but not when he was actually not in the store," and that Alonzo (who was responsible for nine stores spread between Austin and Eagle Pass) was in her store only once or twice per month. However, Miller claimed that when Alonzo did visit her store, he typically stayed "[a]n entire day," and she suggested that this was somewhat longer than his visits to other stores with male managers.
The district court submitted to the jury both Miller's quid-pro-quo liability theory (whether Miller was "subjected to unwelcome sexual advance(s) or demand(s)" by Alonzo and that her "submission to or refusal to submit" to such advances or demands was a "motivating factor" in her termination), her hostile-work-environment theory, and Twigland's Faragher/Ellerth affirmative defense to vicarious liability under Miller's hostile-work-environment theory. See Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. The jury failed to find Twigland liable under Miller's quid-pro-quo theory. However, it found Twigland liable under the hostile-work-environment theory and failed to find that Twigland had established both elements of its Faragher/Ellerth defense. As compensatory damages for the discrimination it found, the jury awarded Miller $12,000. However, the jury failed to find unanimously that Twigland had acted with malice or reckless indifference with respect to Miller's right to be free of such discrimination, precluding
Miller's claim for attorney's fees and expert fees was tried to the district court, which awarded Miller $113,625 in reasonable and necessary trial-level attorney's fees, $35,000 in contingent appellate fees and $1,440 in expert-witness fees. The court entered findings of fact and conclusions of law in support of these awards. The district court subsequently rendered final judgment awarding Miller the actual damages awarded by the jury, prejudgment and post-judgment interest on that amount, plus the attorney's fees and expert fees the court had found. This appeal ensued.
Twigland brings five issues on appeal, contending that (1) the evidence was legally insufficient to support the jury submission of Miller's hostile-work-environment theory and legally and factually insufficient to support the jury's finding on that issue; (2) the evidence conclusively established Twigland's Faragher/Ellerth affirmative defense to Miller's hostile-work-environment theory or the jury's contrary finding was against the great weight and preponderance of the evidence; (3) the evidence was legally and factually insufficient to support the jury's award of any compensatory damages to Miller; (4) the district court's award of almost $150,000 in attorney's fees to Miller on her mere $12,000 actual-damages recovery was excessive and not supported by legally or factually sufficient evidence; and (5) that the district court abused its discretion in admitting certain evidence of Alonzo's conduct involving other Twigland employees. We need only consider Twigland's first issue, as it is dispositive.
We will sustain a legal-sufficiency complaint if the record reveals: (a) the complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. See id. at 827. We review the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. See id. at 807.
When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is less than a scintilla and, in legal effect, is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). But more than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id.
When reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact, we must consider, weigh, and examine all of the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We should set aside the verdict only if the evidence that supports the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). But we may not merely substitute our judgment for that of the jury. Pool, 715 S.W.2d at
The TCHRA provides administrative remedies against "unlawful employment practices," and, once those remedies are exhausted, judicial remedies including recovery of certain damages, equitable relief, and attorney's and expert-witness fees. See Tex. Lab.Code Ann. §§ 21.201-.262 (West 2006). The TCHRA's general prohibition against "unlawful employment practices," section 21.051 of the labor code, provides, in relevant part:
Id. § 21.051. Section 21.051 is modeled on and "`is substantively identical to its federal equivalent in Title VII' but adds age and disability to the protected categories." Texas Parks & Wildlife Dep't v. Dearing, 240 S.W.3d 330, 349 n. 7 (Tex.App.-Austin 2007, pet. denied) (quoting Quantum Chem. Co. v. Toennies, 47 S.W.3d 473, 475 (Tex.2001)); see 42 U.S.C.A. § 2000e-2(a)(1) (West 2003) ("[I]t shall be an unlawful employment practice for an employer. . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . ."). The legislature intended that the TCHRA "`correlat[e]. . . state law with federal law in the area of discrimination in employment,'" Dearing, 240 S.W.3d at 351 (quoting Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991)), and "`coordinate and conform with federal law under Title VII . . . .,'" id. (quoting Caballero v. Central Power & Light Co., 858 S.W.2d 359, 361 (Tex.1993)). Thus, we may look to federal case law under Title VII when construing its Texas counterpart. Zeltwanger, 144 S.W.3d at 445-46.
The statutory focus of labor code section 21.051, like Title VII, is employer conduct that "discriminates . . . against an individual in connection with . . . the terms, conditions, or privileges of employment." With regard to gender discrimination, the U.S. Supreme Court has recognized that the phrase "terms, conditions or privileges of employment" is not limited to "`terms' and `conditions' in the narrow contractual sense, but `evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women' in employment.'" Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (citations and internal quotation marks omitted)).
While potentially actionable under other civil-liability theories, such as common-law assault, or even prohibited by the criminal law, sexual harassment—"unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature," Vinson, 477 U.S. at 65, 106 S.Ct. 2399—does not in itself constitute "discriminat[ion] . . . against an individual in connection with. . . the terms, conditions, or privileges of employment" "because of . . . sex." However, sexual harassment can affect a "term, condition, or privilege" of a plaintiff's employment, and thereby constitute
Consistent with the statutory focus on discriminatory employment terms and conditions, a plaintiff asserting a hostile-work-environment sexual-harassment theory of job discrimination against her employer has the burden of establishing not only that: (1) she is a member of a protected class (e.g., a woman); (2) she was the victim of uninvited sexual harassment; and (3) the harassment was based on sex; but also that (4) the harassment affected a "term, condition, or privilege" of her employment. See Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 434 (5th Cir.2005). Further, to hold her employer vicariously liable, the plaintiff must also prove (5) her employer knew or should have known of the harassment and failed to take prompt remedial action. Id. However, where, as here, a hostile-work-environment sexual-harassment claim is predicated on actions by the plaintiff's supervisor, the plaintiff need not prove the fifth element; instead, the burden is shifted to the employer to defeat vicarious liability by proving the Faragher/Ellerth affirmative defense. Faragher, 524 U.S. at 802-08, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. On appeal, Twigland challenges the sufficiency of the evidence supporting the fourth element, whether any harassment by Alonzo affected a "term, condition, or privilege" of Miller's employment.
"[N]ot all workplace conduct that may be described as `harassment' affects a `term, condition or privilege' of employment." Vinson, 477 U.S. at 67, 106 S.Ct. 2399. As the U.S. Supreme Court has explained, in regard to Title VII:
Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citations and internal quotation marks omitted). Such matters are instead left to other legal theories or protections, employer policies and practices, or social opprobrium.
The core concept of the hostile-work-environment sexual-harassment theory is that sexual harassment has created an environment that, through the impact it would have on the victim, can be said to discriminatorily alter a "term, condition, or privilege" of employment. See Ellerth, 524 U.S. at 751-52, 118 S.Ct. 2257; Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 473 (Tex.App.-Austin 2000, pet. denied) ("The critical inquiry is the environment . . . .") (quoting Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 678 (Tex.App.-El Paso 1997, writ denied)). Sexual harassment is said to affect a term, condition, or privilege
The Supreme Court has described the "abusiveness" standard as requiring "extreme" conduct, Faragher, 524 U.S. at 788, 118 S.Ct. 2275, but not necessarily any tangible psychological impact on the victim. See Harris, 510 U.S. at 21, 114 S.Ct. 367. Rather, abusiveness is said to "take[] a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury." Id. The idea is that:
Id. at 22, 114 S.Ct. 367; see Oncale, 523 U.S. at 80, 118 S.Ct. 998 ("`The critical issue, Title VII's text indicates [and the same is true of labor code section 21.051], is whether members of one sex are exposed to disadavantageous terms or conditions of employment to which members of the other sex are not exposed.'") (quoting Harris, 510 U.S. at 25, 114 S.Ct. 367 (Ginsburg, J., concurring)); Harris, 510 U.S. at 25, 114 S.Ct. 367 (Scalia, J., concurring) ("[T]he test is not whether work has been impaired, but whether working conditions have been discriminatorily altered."). The concept is that sexual harassment rises to a level that is so "extreme" and "abusive" that it deprives the victim of equal opportunity in the workplace. See Meritor, 477 U.S. at 67, 106 S.Ct. 2399 ("`Sexual harassment which creates a hostile . . . environment for members of one sex is [an] arbitrary barrier to sexual equality at the workplace. . . .'"); DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 593 (5th Cir.1995) (purpose of hostile-work-environment sexual-harassment claim "is to level the playing field for women who work by preventing others from impairing their ability to compete on an equal basis with men. . . . A hostile environment claim embodies a series of criteria that express extremely insensitive conduct against women, conduct so egregious as to alter the conditions of employment and destroy their equal opportunity in the workplace.").
Whether conduct is sufficiently "extreme" to create an "abusive" work environment is to be viewed from both an objective and subjective standpoint. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive working environment—an environment that a reasonable person would find hostile or abusive—is beyond [the statute's] purview." Harris, 510 U.S. at 21, 114 S.Ct. 367. "Likewise, if the victim
The Supreme Court has also emphasized that "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances,'" with "careful consideration of the social context in which a particular behavior occurs and is experienced by its target." Oncale, 523 U.S. at 81, 118 S.Ct. 998. It has further observed that "[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Id. at 81-82, 118 S.Ct. 998; see also id. at 81, 118 S.Ct. 998 (contrasting the examples of a football coach smacking a player on the backside as he heads onto the field versus the coach's committing the same act on a secretary back at the office).
The U.S. Supreme Court has acknowledged that objective abusiveness "is not, and by its nature cannot be, a mathematically precise test." Harris, 510 U.S. at 22-23, 114 S.Ct. 367. Nonetheless, it has instructed lower courts to apply objective "abusiveness" as a legal threshold to "filter out" complaints of alleged harassment that are "not actionably severe or pervasive" as a matter of law. Faragher, 524 U.S. at 787-88, 118 S.Ct. 2275 (approving courts' disposition by summary judgment of claims "attacking the `ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing'"). Over time, a considerable body of case law has developed as lower federal courts have applied this "filter" to myriad fact patterns and attempted to distinguish facts rising to the level of objective abusiveness from those that do not. The cases are highly fact-specific, often resembling a sort of equitable balancing of the factors identified by the U.S. Supreme Court, and clear or categorical rules are elusive. We may nonetheless
We begin by examining the frequency or pervasiveness of Alonzo's alleged conduct. Drawing reasonable inferences in Miller's favor, Alonzo's actionable harassment occurred during only the final forty-nine days before her fourteen-month tenure at Twigland ended in termination.
Miller also indicated that at unspecified times during Alonzo's store visits—which occurred on November 9, December 7, and December 15—Alonzo made "very light, physical contacts" with her "at times when behind the counter would be overcrowded and I would be taking care of customers." She added that during food-court meetings during these visits, Alonzo "would just put his hand on mine." Miller also testified that Alonzo made one of his coded references to accruing "kisses" during his December 15 store visit. Finally, Miller complains that during their December 28 meeting in which he terminated her, Alonzo cried, bemoaned the "plans" he had "for us," and indicated that he had wanted to take Miller to a restaurant and bar in what could be considered a romantic setting.
Miller acknowledged that Alonzo—who supervised stores in a region extending from Austin to Eagle Pass—was typically in her store only once or twice per month and in fact was in her physical presence during only four days of the forty-nine-day period in which she claimed Alonzo harassed her—the November 9 store visit, the December 7 store visit, the December 8 meeting at Barton Creek Mall, and a December 15 store visit. While Miller insisted that Alonzo's visits to her store would typically last for the entire work day and that their food-court meetings might last hours, it remains that these face-to-face encounters and any alleged harassment occurring on those occasions were relatively infrequent compared to the far more numerous work days in which Alonzo was not around. Miller did not complain of any harassment when Alonzo was not present other than the November 11 phone conversation in which Alonzo purportedly
Alonzo's alleged conduct lacks the frequency or pervasiveness that is typically required to establish an actionable hostile-work-environment sexual-harassment claim. See, e.g., Puckett v. City of Portsmouth, 391 F.Supp.2d 423, 427, 436 (E.D.Va.2005) (three incidents during one month were not sufficiently pervasive to support claim); Gharzouzi v. Northwestern Human Servs., 225 F.Supp.2d 514, 536 (E.D.Pa.2002) (six incidents in three months, including one month with three incidents, not sufficiently pervasive to support claim); Noble v. Monsanto Co., 973 F.Supp. 849, 857 (S.D.Iowa 1997) (three incidents in close succession within same year were not sufficiently pervasive to support claim); Garcia v. ANR Freight Sys., Inc., 942 F.Supp. 351, 356 (N.D.Ohio 1996) (three incidents during five-day orientation did not support claim); cf. Lauderdale, 512 F.3d at 164 (pervasiveness of perpetrator's ten to fifteen phone calls to victim during victim's shift every night for almost four months reduced victim's burden as to severity).
Although even infrequent harassment may be deemed to alter terms, conditions, or privileges of employment if especially egregious, see Faragher, 524 U.S. at 788, 118 S.Ct. 2275; Lauderdale, 512 F.3d at 163, the conduct of which Miller complains falls below the objective severity courts have required to meet that threshold. Miller admitted that Alonzo never sexually solicited her, asked her to have sex with him, made a sexual advance toward her, or attempted to kiss her. As for the conduct Alonzo allegedly did commit, the case law reveals that an array of shockingly more egregious (and often more pervasive) uninvited physical contact and utterances have been held insufficiently severe to alter terms, conditions, or privileges of employment. See, e.g., Hockman, 407 F.3d at 321-22 (in addition to making sexually suggestive remarks, repeatedly insisting that employee be alone with him, and remarking on another employee's body, supervisor over one-and-a-half years brushed up against employee's breast and behind, once tried to kiss her, once stood in bathroom doorway while employee was present, and once swatted employee's behind with newspaper); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 578-79, 582-86 (11th Cir.2000) (during six- to seven-month period, superior made flirtatious comments (e.g., "[y]ou are looking very beautiful"); persistently invited her to lunch, dinner, and drinks; called plaintiff's house at night two or three times per week inquiring into such personal matters as whether she was in bed yet or where her boyfriend was; once placed his hand on plaintiff's inner thigh; once lifted plaintiff's dress about four inches; commented that plaintiff was "innocent and you don't have much [sexual] experience;" and indicated he would have "come and spend [sic] the night with you" during a thunderstorm the previous evening); Mendoza v. Borden, Inc., 195 F.3d 1238, 1247-51) (11th Cir.1999) (en banc) (over eleven-month period, supervisor was "constant" in following plaintiff and staring at her in a "very obvious fashion,"
In arguing that the objective severity of Alonzo's conduct rises to the level of altering terms, conditions, or privileges of her employment, Miller emphasizes the two December 7 hugging incidents. Miller recounted that she was "kind of like halfway bent down" when Alonzo approached "and just gave me this really tight hug" while uttering "some comment about the holiday." Miller claimed that "all of his body" came into contact with hers, with his arms "in front of me," in a manner that "I would probably get from a spouse or a boyfriend." This embrace, according to Miller, "lasted like maybe a second or so" before she "broke loose as fast as I could." Alonzo then gave her another similar hug a few minutes later. While no doubt highly offensive to her, we cannot conclude, in light of the foregoing cases, that these two isolated and brief incidents, alone or in combination with Alonzo's other alleged conduct, would be considered the sort of objectively severe conduct that would be deemed to alter the terms, conditions, or privileges of Miller's employment. See Hockman, 407 F.3d at 321-22 (supervisor's breast-grabbing, attempted kiss, sexually suggestive remarks, and insistence that employee be alone with him not enough); Quinn, 159 F.3d at 768 ("deliberate[] touch[ing]" of breasts with papers not enough); Paul v. Northrop Grumman Ship Sys., 309 Fed.Appx. 825, 826-29 (5th Cir.2009) (per curiam) (not enough that male foreman "chest[ed] up" to female employee's breasts in thirty-second confrontation, then followed employee through narrow passageway, placed his hands on her stomach, ran his arm around her waist, and "`rubbed his pelvic region across [her] hips and buttocks'" for a minute or more; noting that court had held that similar "non-pervasive conduct involving physical touching—including unwanted touching of intimate body parts—[is] not actionable under Title VII." (citing cases)).
Miller also relies on the concept that because Alonzo was her supervisor, his conduct was invested with "a particular threatening character" due to his "power and authority" over her. Ellerth, 524 U.S. at 763, 118 S.Ct. 2257. However, nearly all of the preceding cases we have discussed involved conduct by supervisors that would carry with it the explicit or implicit threat of job-related repercussions. We also note that each of the incidents of which Miller complains, with the exception of the December 7 hugging incident and the November 11 phone conversation, occurred in public view, in public areas of shopping malls or Miller's retail store. Even the hugging incident, the evidence reflects, occurred in a back storage room located a few feet from the retail area and while the Twigland company president was in the retail area. Additionally, Miller admitted that she knew Twigland had a written anti-sexual-harassment policy that permitted (indeed, required) her to report any such conduct to the company's human-resources department. Although Miller attacked the effectiveness of Twigland's sexual-harassment policy in challenging whether Twigland met its burden of establishing that it exercised "reasonable care" to prevent and correct harassment—the first element of its Faragher/Ellerth affirmative defense, Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257—it remains undisputed that Miller never attempted to avail herself of this protection. See Barrett v. Applied Radiant Energy Corp., 240 F.3d 262,
Finally, we consider the extent to which Alonzo's conduct unreasonably interfered with Miller's work performance. See Harris, 510 U.S. at 23, 114 S.Ct. 367. Twigland places great emphasis on Miller's admissions that her job performance had not only been unharmed by Alonzo's alleged conduct, but actually improved. It suggests that the absence of any harm to Miller's job performance singularly forecloses her claim. This overstates what the U.S. Supreme Court has actually held. See Harris, 510 U.S. at 22, 114 S.Ct. 367 ("[E]ven without regard to . . . tangible effects [on employees' job performance, retention, or advancement], the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality."). Nonetheless, Miller's admissions are significant in determining whether, from the perspective of a reasonable person in Miller's position, Alonzo's conduct created a work environment so abusive that it constituted an alteration of the terms, conditions, or privileges of her employment. Also, while Miller did testify to her subjective impressions that Alonzo's presence in her store was distracting and made her job more difficult, she conceded that these impediments arose only "[w]hen [Alonzo] was in the store, but not when he was actually not in the store." Again, Alonzo was in Miller's physical presence on only four days during the forty-nine-day period in which he allegedly harassed her.
Guided by the foregoing jurisprudence, we must conclude that Miller has not presented legally sufficient evidence that any sexual harassment by Alonzo rose to the level of altering the terms, conditions, or privileges of her employment and "creat[ing] an abusive working environment." Harris, 510 U.S. at 21, 114 S.Ct. 367 (quoting Meritor, 477 U.S. at 67, 106 S.Ct. 2399). Again, the point of a hostile-work-environment sexual-harassment claim under section 21.051 or Title VII is not to combat sexual harassment as an end in itself, however reprehensible such harassment may be, but to provide a remedy when sexual harassment rises to a level so "extreme" and "abusive" that it deprives the victim of equal opportunity in the workplace. See Meritor, 477 U.S. at 67, 106 S.Ct. 2399; DeAngelis, 51 F.3d at 593. Considering the infrequency of Alonzo's alleged conduct, its lack of relative severity, and the limited degree to which it impacted Miller's work performance, Miller has failed to raise a fact issue that she suffered such a deprivation as understood in the applicable jurisprudence.
Emphasizing the language of the two-judge panel of this Court in Davis, Miller urges that because "gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogenous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment.. . ." Davis, 979 S.W.2d at 43 (quoting Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir.1998)). That statement, as Davis acknowledges, presumes that there is legally sufficient evidence to support submitting the issue to the jury. See id. The evidence falls below that threshold here. We sustain Twigland's first issue.
Our disposition of Twigland's first issue requires us to reverse and render judgment that Miller take nothing on her claim. We need not reach Twigland's other appellate issues. See Tex.R.App. P. 47.1.
Chief Justice LAW not participating.
Before Chief Justice JONES, Justices PATTERSON, PURYEAR, PEMBERTON and HENSON.
PER CURIAM.
The appellee Nemia Miller has filed a motion for reconsideration en banc. The motion is denied.
It is ordered October 22, 2010.
Concurring Opinion by Chief Justice JONES.
Dissenting Opinion by Justice HENSON, joined by Justice PATTERSON.
J. WOODFIN JONES, Chief Justice, concurring.
I concur in the order overruling the motion for rehearing en banc. I write separately to explain my reasons for doing so.
Under the Texas Rules of Appellate Procedure, en banc consideration of an appeal is disfavored:
Tex.R.App. P. 41.2(c). I believe "extraordinary circumstances" include such matters as (1) addressing legal issues on which Texas courts of appeals are split; (2) addressing issues that are highly significant to the public or in which the public has a high level of interest; and (3) overruling an earlier decision of this Court. In addition, "extraordinary circumstances" may include other cases in which it is imperative, for whatever reason, that this Court speak with one voice. I do not believe the present case falls into any of those categories.
That leaves the category of cases in which it is "necessary to secure or maintain uniformity of the court's decisions." I do not believe the present case satisfies that standard either. The present case is highly fact-specific, as was the Davis case.
I take no position on the merits of the present case, because I do not believe the case rises to the level at which en banc review is permissible under the rules. The dissenting justices believe that the evidence favoring the plaintiff in the present case constitutes more than a scintilla, while the justices on the original panel take the opposite view. In my view, this does not satisfy the strictures of rule 41.2(c).
I respectfully dissent from the decision to deny the motion for en banc reconsideration. Because the panel's opinion in this case conflicts with this Court's prior decision in Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30 (Tex.App.-Austin 1998, pet. denied), en banc review is necessary to maintain uniformity of the Court's decisions. See Tex.R.App. P. 41.2(c) (en banc review should not be ordered "unless necessary to secure or maintain uniformity of the court's decisions" or in light of extraordinary circumstances).
In determining whether there was legally sufficient evidence to support the jury submission of Miller's hostile-work-environment theory, the record is to be examined for evidence supporting Miller's theory, and all evidence to the contrary must be ignored. See Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992) ("To determine whether legally sufficient evidence supported Dr. Elbaor's contributory negligence submission, we must examine the record for evidence supporting Dr. Elbaor's question and ignore all evidence to the contrary."). The evidence must be considered in the light most favorable to Miller, and every reasonable inference must be indulged in her favor. See Harbin v. Seale, 461 S.W.2d 591, 592 (Tex. 1970). Viewing the evidence in this light, the reviewing court must then determine "whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). In other words, to reverse a verdict based on legally insufficient evidence to support submission of a jury question, the reviewing court must be persuaded that reasonable minds could not differ on the matter. See id. (quoting William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L.Rev. 515, 522 (1991)).
This Court acknowledged in Davis that hostile-work-environment claims are particularly suited to disposition by jury, rather than the judgment of a reviewing court with a cold record. See 979 S.W.2d at 43 ("Today, while gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogeneous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation." (quoting Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir.1998))). In Davis, the complained-of actions consisted of the plaintiff's supervisor "commenting that Davis looked good in jeans, standing too close, rubbing her arms, and poking her ribs." 979 S.W.2d at 34. The supervisor had also made remarks about wanting Davis to climb a ladder "so that he could have a better view" and to bend over so that he "would have something to look at." Id. Finally, there were allegations that the supervisor had twice grabbed Davis's thighs and refused to let go during "coaching" sessions in his office. Id. Like the present case, there was no sexual assault, no express solicitation, and only a limited number of discrete events alleged as part of the hostile work environment. But rather than tallying the number of complained-of actions and comparing that number to other cases to determine whether there was evidence of a hostile
In fact-specific cases such as this one, where there is no "mathematically precise test" to be applied, id. at 42, we must be mindful of the jury's role as arbiter of the weight and credibility of the evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003) ("[T]he jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony."); see also Smith v. First Union Nat'l Bank, 202 F.3d 234, 243 (4th Cir.2000) (stating that whether harassment is sufficiently severe or pervasive to constitute hostile work environment is "quintessentially a question of fact" for jury (quoting Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir.1994))). In addition, our review of the sufficiency of the evidence must be measured against the language of the jury charge where, as here, there was no objection to the charge. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). The instruction and definition to the jury stated:
It was within the province of the jury to apply this reasonable-person standard to determine whether Alonzo's conduct altered a term, condition, or privilege of Miller's employment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (applying reasonable-person standard to determine whether work environment is sufficiently abusive to warrant protection under Title VII).
The panel concludes that there is no evidence that Miller was subjected to a hostile work environment and that reasonable minds could not differ on the matter, despite the fact that Miller testified to numerous incidents of inappropriate touching, including two unwanted hugs from behind in which "all of [Alonzo's] body" came into contact with hers, as well as a number of sexually charged comments and questions that caused her to feel "humiliated" and "completely appalled." In addition, it is not insignificant that these incidents involved Miller's direct supervisor, as this Court noted in Davis that "a supervisor's power and authority invests his or her harassing conduct with a particular threatening character." Id. (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).
The panel cites a number of federal opinions from various jurisdictions in which the reviewing court found that there was no evidence of a hostile work environment
In addition, the panel cites Miller's ability to successfully manage her store during the period of harassment in support of its conclusion that she has presented no evidence of a hostile work environment. It is true that the Supreme Court has held, and the jury here was instructed, that one of the factors to be considered in determining whether a work environment is hostile or abusive is "whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). However, no single factor described in Harris is required to establish a hostile work environment. Id. As Justice Scalia pointed out, "the test is not whether work has been impaired, but whether working conditions have been discriminatorily altered." Id. at 25 (Scalia, J., concurring). Furthermore, in light of Miller's testimony that Alonzo's presence caused her anxiety and distracted her from her work, the evidence, viewed in the light most favorable to Miller as required by the standard of review, suggests that the work environment did interfere with her performance. It would not be unreasonable to assume that in the absence of the harassing atmosphere, Miller's performance in the workplace might have been better than it was.
Because the panel's decision represents a significant departure from this Court's prior hostile-work-environment jurisprudence, see Davis, 979 S.W.2d at 42-43, I respectfully dissent from the denial of en banc reconsideration.
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