Opinion
Civil No. 3:99-CV-2538-BC
January 22, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Debra Nichols ("Nichols") brings this lawsuit against her former employer, Apartment Temporaries, Inc. ("ATI"), asserting causes of action for sexual harassment in violation of Title VII, 42 U.S.C. § 2000e et seq. and the Texas Commission on Human Rights Act, Tex. Lab. Code Ann. § 21.001 et seq. and state law claims for assault and battery, invasion of privacy, and negligent supervision and training. Before the Court is ATI's Motion for Partial Summary Judgment, filed September 1, 2000. ATI moves for summary judgment on Nichols' state law claims only. Having reviewed the pertinent pleadings and the evidence submitted therewith, the motion is DENIED for the reasons that follow.
The following background facts are taken from Nichols' Second Amended Complaint, filed September 19, 2000, and from the parties' summary judgment pleadings. Unless characterized as a contention by either party, these facts are undisputed.
ATI is a personnel service specializing in responding to the staffing needs of the apartment industry. In short, they identify and place temporary workers at apartment complexes throughout various regions of the United States to perform as maintenance, grounds, or management personnel.
Nichols worked for ATI as a placement counselor from April 1998 through October 29, 1998, the date of her termination. In that position, her responsibilities included developing a workforce in her assigned region, placing those temporary workers at the facilities of ATI's clients, and handling collections from the clients. Cathy Smith started ATI in 1985 and, at all relevant times, she was its President. Krissie Parks ("Parks") was her assistant and her son, Jeff Smith, was responsible for handling the day-to-day accounting and payroll functions. Nichols' allegations in this lawsuit center primarily around the conduct of Jeff Smith.
According to Nichols, while she was employed with ATI, Jeff Smith engaged in various forms of sexual harassment including questioning female workers about their sex lives, and asking them to sit on his lap, to show him their breasts, and to hold his penis while he used the restroom. Some of these acts were directed toward Nichols. In particular, she claims that, under the pretense of wanting to discuss work-related matters, Jeff Smith frequently summoned her to his office and initiated intimate, vulgar and sexually-oriented questions about her personal life, and, at least on one occasion, attempted to look up her dress utilizing mirrors on the top of his shoes. Nichols allegedly complained to Parks about Jeff Smith's conduct, but she failed to take any steps to remedy the situation.
On October 29, 1998, the day of Nichols' termination, she had lunch with some co-workers including Jeff Smith. Upon their return and while waiting to enter into their office building, Nichols alleges that Smith pulled her skirt down to her ankles. Smith acknowledges that he pulled at Nichols' skirt, but claims that he did not pull it all the way to the ground. Later that afternoon, Cathy Smith terminated Nichols, telling her that she had "too much baggage."
By using this phrase, Cathy Smith maintains that she was referring to the impact of Nichols' personal problems, including a contentious divorce and child custody battle, on both her job performance and the potential disruption of work performed by other ATI employees. Def.'s App. to Partial Mot. for Summ. J. at 3 (Cathy Smith Aff. at ¶ 9).
On November 8, 1999, Nichols filed this lawsuit. As noted above, she accuses ATI of sexual harassment discrimination in violation of Title VII and the TCHRA and brings state law claims for assault and battery, invasion or privacy, and negligent supervision and training. As a consequence of this unlawful conduct, Nichols requests compensatory and punitive damages. On September 1, 2000, ATI filed this motion seeking summary judgment on the state law claims. ATI contends that summary judgment is warranted because Nichols cannot establish the essential elements of these claims and, even assuming she can, liability for Jeff Smith's conduct cannot be imputed to ATI. Def.'s Mot. for Partial Summ. J. at 1-5; Def.'s Br. in Support of Mot. for Partial Summ. J. at 4-17. Nichols filed her response on January 5, 2001. Before turning to the merits of ATI's motion, the Court will review the standards governing its analysis.
Prior to the filing of the instant motion, Nichols had alleged causes of action for negligent training, supervision, hiring and retention. In her response, however, she acknowledges that she is proceeding under the theories of negligent supervision and training. See Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. at 20 n. 8.
II. Summary Judgment Standards
Under Rule 56(c) of the Federal Rules of Civil procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) . "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986) . Only disputes about those facts will preclude the granting of summary judgment. Id . In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990) . If the non-movant bears the burden of proof at trial, the movant for summary judgment need not support the motion with evidence negating the opponent's case; rather, the movant may satisfy its burden by showing that there is an absence of evidence to support the non-movant's case. Id.; Little, 37 F.3d at 1075 .
Once the movant makes this showing, the burden shifts to the non-movant to show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54 (1986)) . "This burden is not satisfied with `some metaphysical doubt as to the material facts,' . . . by `conclusory allegations,'. . . by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Id. (quoting Matsushita Elec.Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986) . Rather, the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting FED.R.Civ.P. 56(e)) .
In determining whether a genuine issue for trial exists, the court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non-movant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000); Anderson, 477 U.S. at 248, 106 S.Ct. at 2510 . With these guidelines in mind, the court now turns to discuss ATI's motion in the context of Nichol's assault and battery and invasion of privacy claims, then to her negligent supervision and training claim.
III. Analysis
A. Assault and Battery/Invasion of Privacy
ATI maintains that Nichols cannot establish the essential elements for her assault and battery or invasion of privacy claims and that, in any event, liability for Jeff Smith's conduct cannot be imputed to ATI. Def.'s Br. at 4.14.
1. Essential Elements for Assault and Battery/Invasion of Privacy
Both parties recognize in their summary judgment briefs that, under Texas law, the elements for an assault and battery claim are the same in civil and in criminal cases. See Green v. Indust. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex.App. — Houston [1st Dist.] 1999, no pet.) . A person commits an assault and thus may be liable in a civil case if he "intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." See id. (citing Tex. Penal Code Ann. § 22.01(a)(3) (Vernon 1994)) .
Nichols has alleged and testified at her deposition that on the day she was terminated, after returning from lunch and while waiting to enter into their office building, Jeff Smith pulled her skirt down to her ankles. Pl.'s App. to Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. ("Pl.'s App.") at 111-12 (Nichols Depo.) . Her allegations are corroborated by one of her former co-workers. Id. at 79 (Karen Pyle Depo.) . Additionally, Jeff Smith acknowledged that he pulled on Nichols' skirt, but he denies pulling it to the ground; nevertheless, he also admitted that he could not refute her allegation in this regard. Id. at 55-57 (Smith Depo.) . This evidence, the court finds is sufficient to raise a genuine fact issue as to whether Jeff Smith committed an assault under Texas law.
ATI also moves for summary judgment on Nichols' "separately styled" assault claim to the extent it is premised on the other assault provisions of the Texas Penal Code pertaining to actual or threatened bodily injury. See Tex. Penal Code Ann. § 22.01(a)(1), (2) (Vernon 1994). Nichols has abandoned this claim in her response and does not oppose the entry summary judgment thereon. See Pl.'s Resp. at 7. Accordingly, this claim is dismissed.
With respect to Nichols' invasion of privacy claim, ATI contends that she has failed to plead facts demonstrating a cognizable privacy claim under Texas law. Def.'s Br. at 12-43 . ATI argues, in effect, that invasion of privacy jurisprudence in Texas limits that claim to trespass actions and does not extend it to the sexual harassment allegations made by Nichols in this suit. The court disagrees.
Nichols has alleged that she has a reasonable expectation of privacy or seclusion in her body, and that Jeff Smith, by pulling her skirt down to her ankles, invaded that privacy interest. See Pl.'s Resp. at 11-12. The evidence in the record supporting this allegation is set forth above.
Nichols also alleges that Jeff Smith invaded her privacy by looking up her skirt, however, as explained below, her claim that Smith pulled her skirt down is sufficient by itself to state a cognizable invasion of privacy claim.
"Texas law recognizes the common-law right to privacy." Farrington v. Sysco Food Serv., Inc., 865 S.W.2d 247, 253 (Tex.App.-Houston [1st Dist] 1993, no writ) (citation omitted) . Three element comprise an invasion of privacy claim: (1) an intentional intrusion; (2) upon the seclusion, solitude, or private affairs of another; (3) which would be highly offensive to a reasonable person. Id. (citations omitted).
Although no case appears to be directly on point, Texas courts and other authority have recognized the viability of an invasion of privacy claim brought in the context of sexual harassment allegations. See Perez v. Living Centers-Devcon, Inc., 963 S.W.2d 870, 875 n. 7. (Tex.App.-San Antonio 1998, pet. denied) (citing cases and articles) . In fact, the Perez court held that the plaintiff could pursue her common law tort claims, including invasion of privacy, which arose from the same facts as her sexual harassment claim, even though her sexual harassment claim was otherwise barred because of her failure to exhaust her administrative remedies under the TCHRA. Id. In light of this authority, the Court is unwilling to say as a matter of law, that Nichols' invasion of privacy claim is not cognizable under Texas law.
In sum, the Court finds that Nichols has offered competent, summary judgment proof sufficient to raise a genuine fact issue as to the existence of her claims for assault and battery and invasion of privacy. The issue then becomes, for purposes of this motion, whether Jeff Smith's conduct may be imputed to ATI.
2. Liability of ATI for Jeff Smith's Conduct
Both parties agree in their briefs that liability for Jeff Smith's alleged tortious conduct may be imputed to ATI under anyone of three different theories: (1) if he was acting within the course and scope of his employment at the time of his tortious acts (respondeat superior); (2) if he was a vice-principal of ATI; or (3) if ATI ratified his conduct. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex. 1999); See also generally Durand to Moore, 879 S.W.2d 196 (Tex.App. — Houston (14th Dist.] 1994, no writ) (ratification) .
An employee's status as a vice-principal will impute liability for his actions to the employer regardless of whether those actions occur within his scope of employment. GTE Southwest, 998 S.W.2d at 618 . "A vice-principal represents the corporation in its corporate capacity, and includes persons who have authority to employ, direct, and discharge servants of the master, and those to whom a master has confided the management of the whole or a department or division of his business." Id.
ATI maintains that it cannot be held liable for Jeff Smith's conduct under a vice-principal theory because he had no authority to hire, fire or direct ATI employees nor was he entrusted with management of a department. Def.'s Br. at 8-10. The undisputed evidence, however, demonstrates that Jeff Smith was the only ATI employee to handle accounting and payroll functions. referred In fact, Cathy Smith acknowledged that her son could be to as the "billing manager." Pl.'s App. at 16-17 (Cathy Smith Depo.). Nichols has also offered evidence that Jeff Smith communicated with and directed ATI employees on payroll issues and information regarding time cards that they submitted to him. Id. at 85 (Pyle Depo.), 92-93 (Nichols Depo.), 129 (Pruitt Depo.) .
Moreover, there is testimony in the record that when Cathy Smith was away from the office, Krissie Parks and Jeff Smith were in charge, and that he could make any necessary decisions. Id. at 92a-94 (Nichols Depo.), 130-31 (Pruitt Depo.). Nichols also points to evidence that Jeff Smith had on occasion reprimanded employees for being tardy see id. at 61 ( Jeff Smith Depo.), 1.41 (Pruitt Depo.), 80-82 (Pyle Depo.), and that he participated in closed-door management meetings at which the performances of ATI employees were discussed and critiqued. Id. at 127-28, 137-38 (Pruitt Depo.). There is further evidence that only select employees, including Parks and Jeff Smith, had keys to ATI's premises and the commensurate authority to allow employees on the premises after hours. Id. at 142 (Pruitt Depo.). And finally, Nichols points to evidence that both Parks and Jeff Smith were paid on a different bonus structure than other ATI employees. Id. at 34-35 (Parks Depo.), 206.
Viewing this evidence in the light most favorable to Nichols, the court finds that a genuine fact issue exists as to whether Jeff Smith had authority to direct ATI employees and whether he had at least some measure of influence over their discharge. Genuine fact issues also exist as to whether he had been confided the management of the whole or a department or division of ATI's business. Consequently, ATI has failed to meet its burden to demonstrate as a matter of law that Jeff Smith was not a vice-principal of ATI and that it cannot be held liable for his conduct giving rise to Nichols' assault and battery and invasion of privacy claims. Accordingly, for these reasons, summary judgment on these claims is DENIED.
Because these fact issues exist as to ATI's liability under the vice-principal theory, the Court need not and will not discuss Nichols' arguments that liability may also be imputed to ATI because Jeff Smith committed tortious conduct in the scope of his employment and because ATI otherwise ratified his conduct.
B. Negligent Supervision and Training
ATI also moves for summary judgment on Nichols' claims for negligent supervision and training on the grounds that she cannot demonstrate any physical injury or that ATI's alleged negligent conduct proximately caused her injuries. Def.'s Br. at 14-17.
ATI's first argument is unpersuasive. As Nichols points out, Texas courts recognize a cause of action for negligent supervision and training so long as the employee commits an actionable tort causing a "legally compensable injury" — not necessarily physical injury. See Gonzales v. Willis, 995 S.W.2d 729, 739-40 (Tex.App.-San Antonio 1999, no pet.) . Here, Nichols has demonstrated that fact issues exist as to whether Jeff Smith committed the actionable torts of assault and battery and invasion of privacy. Negligent supervision and training, therefore, may be a viable cause of action against ATI in this case.
As to ATI's second argument, the court finds that genuine fact issues exist as to whether ATI's alleged negligence proximately caused Nichols' injuries. The undisputed evidence establishes that ATI did not have a sexual harassment policy for its employees in place until September of 1998, one month before Nichols' termination. Pl.'s App. at 5. According to Cathy Smith, any reports of sexual harassment should have been made to her or Krissie Parks. Id. at 18 (Cathy Smith Depo.). Yet, she also admitted that she has provided no sexual harassment training to any of her employees nor has she explained or have someone else explain the policy to them. Id. at 19-20 (Cathy Smith Depo.). Both Parks and Jeff Smith acknowledged that neither of them have received any training on handling sexual harassment complaints. Id. at 38 (Parks Depo.), 50, 61 (Jeff Smith Depo.). And although Parks may deny receiving any reports of sexual harassment by Jeff Smith, Nichols testified that she complained to Parks regarding his conduct even before ATI implemented its sexual harassment policy. Id. at 91-92, 102, 108 (Nichols Depo.). To this, Nichols claims, Park did nothing but laugh. Id. at 92, 108 (Nichols Depo.). In fact, when Nichols complained to Parks about Jeff Smith's request that she hold his penis while he used the restroom, Parks allegedly stated, "Oh, you fell for that one, too. He's done that to everybody." Id. at 92 (Nichols Depo.).
Again, viewing all of the evidence in the light most favorable to Nichols, the Court finds that genuine fact issues exist as to whether ATI's alleged negligence proximately caused Nichols' injuries. Accordingly, summary judgment on her negligent supervision and training claim is DENIED.
IV. Conclusion
For the foregoing reasons, the ATI's Motion for Partial Summary Judgment is DENIED.