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 2005-10

AAA Office Coffee Service, Inc. v. Debra K. Hansen, Debbie Clodfelter and Rick Clodfelter ( 2005 )


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  • Opinion issued October 6, 2005















     

                                                                  

    In The

      

    Court of Appeals  

    For The  

    First District of Texas  

     

     

     

      NO. 01-03-00984-CV

    ____________

     

    AAA OFFICE COFFEE SERVICE, INC., Appellant  


    V.


    DEBRA K. HANSEN, DEBBIE CLODFELTER, and RICK CLODFELTER, Appellees  




    On Appeal from the 152nd District Court

    Harris County, Texas

    Trial Court Cause No. 2002-07132


     

     

    MEMORANDUM OPINION

              Appellant, AAA Office Coffee Services, Inc. (“AAA”), challenges the trial court’s judgment, entered after a jury trial, awarding appellees, Debra K. Hansen, Debbie Clodfelter, and Rick Clodfelter, damages for sexual harassment, retaliation, and employment discrimination. In eight of its ten points of error, AAA contends that the evidence was legally and factually insufficient to support the jury’s findings that Hansen and Debbie Clodfelter were subjected to sexual harassment by AAA; that a discriminatory practice motivated AAA’s decision to fire Hansen and the Clodfelters; and that AAA acted with malice or reckless indifference to the rights of Hansen and the Clodfelters. In its two other points of error, AAA contends that the trial court erred in overruling AAA’s motion for new trial and motion for judgment notwithstanding the verdict because the evidence established as a matter of law, or the overwhelming weight of the evidence established, that AAA was excused from responsibility for the sexual harassment against Hansen and Debbie Clodfelter. We affirm.

                                                                 Factual and Procedural Background

              Appellees filed suit against AAA alleging violations of the Texas Labor Code and various other statutory and common law torts. A jury found that appellees Hansen and Debbie Clodfelter were subjected to sexual harassment at AAA; that AAA was not legally excused from responsibility for the sexual harassment; that appellees’ opposition to AAA’s discriminatory practice, the making or filing of a charge of discrimination, or the filing of a complaint was a motivating factor in AAA’s decision to fire appellees; and that appellees were entitled to recover actual and exemplary damages. The jury awarded $7,500 for lost wages and compensatory damages to Hansen, $8,200 for lost wages and compensatory damages to Debbie Clodfelter, and $1,000 for lost wages to Rick Clodfelter. The jury also awarded $25,000 in exemplary damages to Hansen, $45,000 in exemplary damages to Debbie Clodfelter, and $15,000 in exemplary damages to Rick Clodfelter. The trial court rendered judgment on the verdict.   

              During trial, Hansen testified that she started working for AAA in 1993, voluntarily left in 1996 for personal reasons, and was re-hired by Carl Carter, a AAA district manager, in September of 2000. Hansen worked as a driver under the direct supervision of Carter. Upon her return to AAA, Carter began sexually harassing Hansen. The first major incident occurred in November 2000 when Carter told Hansen that he had been thinking about a hug that they had shared before Hansen left AAA in 1996. In response to Carter’s comment, Hansen explained to him that the hug did not mean anything and that she was sorry if he had taken the hug the wrong way. Subsequently, Carter began making sexually explicit jokes to Hansen, three to four times a day, about women having sex with animals, men, and women. Hansen found the jokes to be inappropriate and offensive. Hansen told Carter that his jokes were inappropriate and made her feel uncomfortable and that she did not want to hear the jokes. Hansen stated that she would walk away from Carter as he was telling the jokes. Hansen did not immediately report Carter’s behavior to anyone else at AAA because he was her boss, she did not want to get fired, and she did not want to trigger his anger.  

              Hansen also testified that Carter physically touched her. Carter had patted her on “the butt” five to seven times, and she felt degraded by these touches. On several occasions, Carter reached inside her shirt pocket and grabbed a pencil or piece of paper, while making it a point to intentionally rub her breasts. In response, Hansen would pull away from Carter and knock his hands away, and Carter found this amusing. Hansen felt physically threatened by Carter’s touching. When Carter told Hansen that she had a “fine ass,” Hansen felt degraded and told Carter that the comment was inappropriate. Carter also asked Hansen questions about her personal sex life. For example, Carter asked Hansen if she was scared to get diseases by sleeping with different people. Carter also asked Hansen if it was sexually frustrating living alone.

              Hansen explained that after an incident in which Carter had yelled at her in the warehouse, she commented on Carter’s inappropriate behavior to Carl Sackett, a vending manager for AAA. After Hansen informed Sackett about Carter’s behavior, Carter’s inappropriate conduct and comments continued. Hansen also explained that she told Sackett about another incident, which occurred sometime in late February or March 2001, in which Carter came out of another employee’s office with a sausage hanging out of his unzipped pants. She felt this behavior was inappropriate and offensive. She spoke with Debbie Clodfelter, the other employee subjected to the incident, and Debbie Clodfelter also appeared offended and angry. When Hansen and Debbie Clodfelter reported this incident to Sackett shortly after the incident, Hansen asked Sackett that he not tell Carter about her complaint so that she could avoid any repercussions from Carter, but she did not object when Sackett informed her that he would need to report the incident. However, the record established that Sackett delayed in reporting the incident until after receiving formal written complaints from Hansen’s lawyer.

              Hansen contacted an attorney in March of 2001, who then sent a letter on her behalf to AAA dated March 27, 2001. In the letter, the attorney asserted that “almost immediately” after Hansen was hired, Carter began sexually harassing her and that the harassment included touching, offensive remarks, and other unwelcome sexual conduct. The attorney also asserted that Hansen had complained directly to Carter and to Sackett, but that the harassment continued. The attorney informed AAA that the conduct had created a hostile work environment, and he requested a response from AAA within five days. Hansen then filed a formal complaint of sexual discrimination with the Equal Employment Opportunity Commission (“EEOC”) on April 25, 2001. Hansen testified that, after filing her complaint, the locks on the warehouse and the security codes were changed, preventing her from performing her duties in a timely manner. Hansen also claimed that her pay was docked. Then, on May 7, 2001, Hansen was fired by Sackett, allegedly because AAA’s insurance would no longer cover her due to her previous conviction for driving while intoxicated (“DWI”). Hansen disputed the reason proffered by AAA for her termination by noting that, until she filed her complaint, no one at AAA ever indicated that the DWI would affect her continued employment at AAA. Hansen also noted that AAA had assured her that the DWI would not present a problem.

               Debbie Clodfelter, who worked primarily in AAA’s Houston office performing administrative and accounting tasks, testified that Carter sexually harassed her as well. She stated that the harassment started with inappropriate jokes, and she would attempt to walk away from Carter, ignore him, and tell him that she did not want to hear the jokes. Carter then started making offensive comments about her body parts and her sex life with her husband, Rick Clodfelter, another AAA employee. Debbie Clodfelter explained that Carter’s remarks were continuous, vulgar, and of a sexual nature. She initially did not say anything to Carter about his comments because she hoped that he would stop if she ignored him. She also noted that, on several occasions, Carter would come up behind her, while she was sitting at her desk, and massage her shoulders. She would pull away and ask him to stop.  

              Debbie Clodfelter also testified that Carter’s behavior got worse, and that she felt degraded by his behavior. She stated that, one time, Carter came into her office with a sausage sticking out of his unzipped pants, and asked “what would you want to do about this?” The incident shocked and upset Debbie Clodfelter, made her feel humiliated and offended, and she did not want to be around Carter anymore. She reported the incident to Sackett, her direct supervisor, the next day. In light of Carter’s harassment, Debbie Clodfelter dreaded going to work. She requested that Sackett not tell Carter about the complaint because she was afraid of Carter’s response. After Debbie Clodfelter made the report, Carter continued to make jokes and rub her shoulders, though she attempted to avoid him. Debbie Clodfelter stated that after she complained about the harassment, some of her duties were taken away from her. She also noted that she had never received a copy of AAA’s sexual harassment policy.   

              In March 2001, Debbie Clodfelter contacted an attorney who sent a letter on her behalf to AAA dated March 27, 2001. The attorney asserted in the letter that “almost immediately” after Debbie Clodfelter was hired, Carter began sexually harassing her and that the harassment included touching, offensive remarks, and other unwelcome sexual conduct. The attorney also noted that Debbie Clodfelter had complained directly to Carter and to Sackett, but that the harassment continued. The attorney informed AAA that the conduct had created a hostile work environment, and he requested a response from AAA within five days. Debbie Clodfelter then filed a formal complaint of discrimination with the EEOC on May 2, 2001. Debbie Clodfelter testified that her job duties were modified in June 2001, and that Sackett fired her on August 17, 2001, allegedly for “money discrepancies.” She testified that she did not steal any money from AAA, and that AAA had never accused her of any wrongdoing prior to her allegations of sexual harassment.   

              Rick Clodfelter, a route salesman for AAA, testified that he was also exposed to Carter’s offensive behavior. Carter would ask him inappropriate questions about his sex life with his wife, Debbie Clodfelter, and about the size of Debbie Clodfelter’s breasts. In one incident, Carter asked Rick Clodfelter about the origin of marks on his body, and Carter speculated that the marks were caused by Rick Clodfelter’s sexual activities with his wife. Rick Clodfelter found these comments to be disgusting, obtrusive, and inappropriate, and he turned and walked away from Carter after he made these comments. Rick Clodfelter complained about Carter’s behavior to Walter Hand, AAA’s chief executive officer, on July 30, 2001. Particularly, Rick Clodfelter complained to Hand about his wife’s sexual harassment charge and stated that he thought AAA was cutting his wife’s hours because of the charge. Rick Clodfelter explained that, in light of the continued sexual harassment against his wife, she was very nervous about going to work, that she felt sick because of her working environment, and that she did not want to go to work. He further stated that the sexual harassment, and AAA’s response to the sexual harassment charge, had a detrimental effect on his marriage. On August 17, 2001, the same day that AAA fired his wife, AAA fired Rick Clodfelter allegedly because the company was being realigned. After being fired, Rick Clodfelter saw that another individual, who had occasionally worked as a part-time employee for AAA when other employees were on vacation, was now working on his route. Rick Clodfelter noted that this employee had not been working for AAA at the time he was fired, and that before he was fired, he was not offered any part-time employment with AAA. He stated that he believed AAA retaliated against him because of his wife’s sexual harassment charge, and that he did not believe AAA’s proffered reason for his firing.

              A former AAA employee, Joyce Cormier, testified that she had also been a victim of Carter’s sexual harassment. Carter would tell her “off-color” sexual jokes about people having sex with other people and animals, both in person and over the phone, and she found these jokes offensive. When Carter told these jokes, Cormier would walk away from Carter or end the conversation quickly. Carter also showed Cormier sexually explicit cartoons. Additionally, Carter hugged Cormier in an inappropriate manner by pulling her too close with her upper body and pinning his chest against her breasts. She found Carter’s conduct to be upsetting and offensive, and pulled away. Cormier also described an incident in which Carter approached her in the warehouse when they were alone and said that he had always wanted her in a sexual way. Cormier felt violated by this comment. Cormier reported Carter’s behavior to her supervisor, Bob Parker, and to another AAA employee, Neal Hall. She told Parker that she did not want to be around Carter anymore. However, even after her complaints, she still had to come into contact with Carter and the conduct continued.

              Sackett testified that, prior to Debbie Clodfelter’s complaint about the incident involving Carter, he never spoke with the appellees about any claims of sexual harassment. Per Debbie Clodfelter’s request, Sackett did not report her complaint immediately. Sackett admitted that he was aware of AAA’s sexual harassment policy and conceded that his failure to immediately report the harassment violated the company’s sexual harassment policy. Sackett also conceded that he only spoke with Hand after receiving the letters from Hansen’s and Debbie Clodfelter’s lawyer, and that he was reprimanded by Hand for not complying with the policy.

              After Debbie Clodfelter complained, Sackett tried to ensure that she was never alone with Carter, and that if he was unable to return to the office when Carter was expected to be there, he would tell Debbie Clodfelter to leave before Carter arrived. Sackett explained that the locks were not changed in response to the sexual harassment claims, but instead as a safety precaution after Carter left AAA, and that revised company policy was for him and only one other employee to have access keys to the warehouse. Sackett denied that Debbie Clodfelter’s and Hansen’s job duties were changed after AAA received notice of their sexual harassment complaints. He stated that Hansen was fired because, in light of her DWI conviction, she did not have a regular driver’s license and could not drive a car. Moreover, Debbie Clodfelter was fired because there were discrepancies in the money counts, and Rick Clodfelter was fired because of a company downsizing.

              Walter Hand, the chief executive officer of AAA, testified that he became aware of Debbie Coldfelter’s and Hansen’s complaints only after being notified by Sackett, and that he immediately called Carter and instructed him not to come into contact with the complaining employees. Hand conceded that Sackett did not comply with the sexual harassment policy when he failed to immediately report Debbie Clodfelter’s complaint. He also admitted that Carter had not complied with the policy. Hand explained that Hansen was fired because she had been cancelled from the company insurance policy due to her DWI conviction. As to Cormier’s complaints, Hand testified that the proper chain of command would have been for Hall to report to him whatever Parker had reported, and he admitted that Hall failed to comply with the company’s policy in reporting Cormier’s sexual harassment complaints.   

    Standard of Review

              When a party without the burden of proof challenges the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex. 1998); Ned v. E.J. Turner and Co., 11 S.W.3d 407, 408 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). If there is more than a scintilla of evidence to support the finding, we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). 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 no more than a scintilla and, in legal effect, is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then there is legally sufficient evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

              Our review of the factual sufficiency of the evidence requires us to consider, weigh, and examine all of the evidence that supports or contradicts the jury’s determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We may set aside the verdict only if the evidence that supports the jury’s finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); City of Houston v. Jackson, 135 S.W.3d 891, 905 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d w.o.j.).  

    Sexual Harassment   

              In its first and third points of error, AAA contends that there was legally and factually insufficient evidence to support the jury’s findings that Hansen and Debbie Clodfelter were subjected to sexual harassment by AAA.

              Question 1 of the trial court’s charge asked the jury whether Hansen or Debbie Clodfelter had been subjected to sexual harassment at AAA. Within question 1, the trial court instructed the jury that: 

    “Sexual harassment” occurred if:

     

               1.       A person was subjected to sexual advances, requests for sexual favors, and/or other conduct of a sexual nature that was unwelcome and undesirable or offensive to the person;

     

              2.       The harassment complained of altered a term, condition, or privilege of employment; and

     

              3a.     The conduct was committed by a supervisor with immediate or successively higher authority over Debra Hansen or Debbie Clodfelter; or

     

              3b.     AAA Office Coffee Service, Inc. knew or should have known of the harassment and AAA Office Coffee Service, Inc. failed to take prompt, remedial action to eliminate the harassment.

    The jury answered “yes” to question 1. AAA argues that appellees did not present any evidence of a hostile work environment and did not present any evidence that AAA knew, or should have known, of the sexual harassment and failed to take remedial action.

              Chapter 21 of the Labor Code provides that it is unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, national origin, or age. Tex. Lab. Code Ann. § 21.051 (Vernon 1996). Chapter 21 is modeled after Title VII of the Federal Civil Rights Act, and sexual harassment is a form of prohibited sex discrimination . Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 131 (Tex. App.––Houston [14th Dist.] 1999, no pet.); Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex. App.––El Paso 1997, pet. denied). Because one of the stated purposes of Chapter 21 is to provide for the execution of the policies of Title VII and its amendments, we may look to federal precedent for guidance when interpreting it. See Tex. Lab. Code Ann. § 21.001(1) (Vernon 1996); see also NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999).

               Courts have generally categorized sexual harassment claims as either “quid pro quo” or “hostile work environment.” Soto, 942 S.W.2d at 677–78. Here, the parties agree that this case presents allegations of sexual harassment and discrimination based on a hostile work environment. In order to prevail on a claim involving a hostile work environment, a plaintiff must show that: (1) she was an employee who belongs to a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take adequate remedial action. Gulf States Toyota, Inc. v. Morgan, 89 S.W.3d 766, 770 (Tex. App.—Houston [1st Dist.] 2002, no pet.); McMillon v. Tex. Dep’t of Insur., 963 S.W.2d 935, 939 (Tex. App.—Austin 1998, no pet.). However, if the alleged harassment was perpetrated by a supervisor with immediate or successively higher authority over the harassed employee, the employee need only satisfy the first four elements of the test outlined above. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).

              In determining if there was a hostile environment, a court should consider the type of conduct, its frequency, its offensiveness, the hostility of the conduct, whether it came from a supervisor or co-worker, and the number of persons at whom it is directed. Dillard Dep’t Stores, Inc. v. Gonzales, 72 S.W.3d 398, 407 (Tex. App.––El Paso 2002, pet. denied); see also Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 473– 74 (Tex. App.––Austin 2000, pet. denied). In making this determination, single incidents should not be viewed alone, but rather the cumulative effect these incidents have on the overall environment is important. Itz, 21 S.W.3d at 473 (citing Soto, 942 S.W.2d at 678). Additionally, we note that a jury has to determine whether a reasonable person would find the environment hostile, and if the alleged victim does not subjectively find the environment hostile, the conduct has not altered the working conditions, and therefore no cause of action arises. Green, 1 S.W.3d at 131.

              It is undisputed that Carter was Hansen’s direct supervisor, as well as the supervisor above Debbie Clodfelter’s direct supervisor. The evidence established that both women could be hired or fired by Carter, and that they worked with him or around him frequently. Carter made offensive and sexually explicit jokes to all three appellees on multiple occasions. Appellees told Carter that his behavior and jokes were inappropriate and unwelcome. Furthermore, Carter touched Hansen and Debbie Clodfelter in sexually suggestive and highly inappropriate manners. For example, Carter patted Hansen on the butt on multiple occasions and also rubbed her breasts when putting his hand in her shirt pocket. Carter massaged Debbie Clodfelter, even though she indicated to him that such touching was unwelcome. The jury was also presented with evidence that, following Hansen’s and Debbie Clodfelter’s complaints to Carter and other AAA employees, their employment conditions were modified, and ultimately, they were fired. While Sackett disputed Hansen’s and Debbie Clodfelter’s allegations of modified employment conditions, his testimony supports Debbie Clodfelter’s testimony that her hours were reduced following her complaints. There was also evidence that Hansen and Debbie Clodfelter were not the only ones subjected to Carter’s conduct. Testimony by Cormier provided evidence that Carter had engaged in sexually harassing behavior on multiple occasions with another employee, and that AAA employees did not adequately respond to prior sexual harassment complaints lodged against Carter.

              We conclude that the testimony of Hansen and Debbie Clodfelter, as well as the testimony of Sackett and Hand, provide more than a scintilla of evidence to support the jury’s finding that Hansen and Debbie Clodfelter were subjected to sexual harassment. Accordingly, we hold that the evidence was legally sufficient to support the jury’s answers to question 1. In regard to appellant’s argument concerning factual sufficiency, AAA does not cite to any evidence contradicting the jury’s findings that Hansen and Debbie Clodfelter were subjected to sexual harassment. In fact, AAA’s argument concerning factual sufficiency on its first and third points of error is limited to a single sentence stating that “the evidence is so weak, with respect to the proof of elements necessary to establish the Plaintiffs’ cause of action for sexual harassment, that the result is manifestly unjust.” Even assuming the factual sufficiency point has been adequately briefed, we conclude, based on the evidence presented, the jury’s answers to question 1 were not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Accordingly, we hold that the evidence was factually sufficient to support the jury’s answers to question 1.   

              We overrule AAA’s first and third points of error.

    Excused from Responsibility for Sexual Harassment

              In its sixth and seventh points of error, AAA contends that the trial court erred in denying its motion for new trial and motion for judgment notwithstanding the verdict because the evidence established as a matter of law, or the overwhelming weight of the evidence established, that AAA was excused from responsibility for the sexual harassment against Hansen and Debbie Clodfelter.   

              We review the trial court’s denial of AAA’s motion for judgment notwithstanding the verdict under a legal sufficiency standard. Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986); Manon v. Solis, 142 S.W.3d 380, 387 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).                        In reviewing the trial court’s denial of AAA’s motion for new trial, we conduct a factual sufficiency review of the jury’s failure to find that AAA was excused from responsibility for the sexual harassment. See   Dow Chem. Co. v. Francis,   46 S.W.3d 237, 242 (Tex. 2001)    ;                                 Cain  , 709 S.W.2d at 176    .          

              Question 2 of the trial court’s charge provided that AAA was legally excused from responsibility for the sexual harassment if AAA had “exercised reasonable care to prevent and correct promptly any sexual harassment behavior” and Hansen or Debbie Clodfelter “unreasonably failed to take advantage of any preventive or corrective opportunities by her employer or to avoid harm otherwise.” The jury found that AAA was not legally excused.  

              An employer can avoid liability in regard to a sexual harassment claim if it can prove that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid the harm. Faragher v. City of Boca Raton, 524 U.S. 775, 806–07, 118 S. Ct. 2275, 2293 (1998); see also Gonzales, 72 S.W.3d at 410; Itz, 21 S.W.3d at 472. Whether an employer’s action in response to a sexual harassment claim is sufficient depends on the specific facts of the case, such as the severity and persistence of the harassment, and the effectiveness of initial remedial steps. Gonzales, 72 S.W.3d at 410. Even if the employer took some steps to correct the problem, if they were not reasonable given the circumstances, the employer may still be held liable. Id. at 410; see also Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 37–39 (Tex. App.—Austin 1998, pet. denied).

              Here, Hand, AAA’s chief executive officer, conceded that the company’s sexual harassment policy had not been distributed to all of the employees, including Debbie Clodfelter. Hand also conceded that the failure of his managers to take prompt action upon receiving the reports of sexual harassment was a failure of the company’s sexual harassment policy. Also, Hansen and Debbie Clodfelter both testified that they told Carter to stop his behavior and that they reported Carter’s behavior to Sackett, a AAA manager, but that Carter’s behavior continued after these complaints. Hand also testified that the women complied with the company’s sexual harassment policy by reporting their complaints to Carter and to Sackett. The evidence reveals that Hansen and Debbie Clodfelter followed the appropriate procedures in making harassment complaints, and that AAA failed to follow its own procedures and respond to the complaints in a timely fashion.

              We find that there was more than a scintilla of evidence supporting the jury’s findings that AAA was not excused from responsibility for the sexual harassment against Hansen and Debbie Clodfelter and we find that AAA did not establish its defense as a matter of law. Accordingly, we hold that the trial court did not err in denying AAA’s motion for judgment notwithstanding the verdict. Additionally, we find that AAA has not demonstrated that the jury’s finding that AAA was not excused from responsibility for the sexual harassment against Hansen and Debbie Clodfelter was against the great weight and preponderance of the evidence. Accordingly, we further hold that the trial court did not err in denying AAA’s motion for new trial.

              We overrule AAA’s sixth and seventh points of error.   

    Retaliation

              In its second, fourth, and fifth points of error, AAA contends that there was legally and factually insufficient evidence to support the jury’s finding that a discriminatory practice motivated AAA’s decision to fire all three appellees.

              Question 3 of the trial court’s charge asked the jury:

    Was opposition to a discriminatory practice, the making or filing of a charge of discrimination, or the filing of a complaint a motivating factor in [AAA’s] decision to terminate any of the [appellees]?  

     

    The jury answered “yes” to this question in regard to all three appellees. AAA contends that there is insufficient evidence to demonstrate a causal connection between appellees’ complaints and their firings. AAA notes that Hansen was fired approximately two months after she initiated her sexual harassment complaint and Debbie Clodfelter was fired almost five months after she made her complaint. AAA also contends that the “motivating factor” standard used in question 3 was incorrect. Appellant contends that, based on Pineda v. United Parcel Serv., Inc., 360 F.3d 483 (5th Cir. 2004), a “but for” standard should have been used in the jury charge.

              The Labor Code prohibits retaliation against a person who (1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. Tex. Lab. Code Ann. § 21.055 (Vernon 1996). In order to make a claim for retaliation, appellees must establish a causal connection between the protected activity and being terminated. See Thomann v. Lakes Reg’l MHMR Ctr., 162 S.W.3d 788, 799–800 (Tex. App.—Dallas 2005, no pet.); Shaikh v. Aerovias De Mexico, 127 S.W.3d 76, 80 (Tex. App.––Houston [1st Dist.] 2003, no pet.). When a discrimination case has been fully tried on the merits, as in this case, a reviewing court does not engage in a burden shifting analysis, but instead inquires whether the evidence is legally sufficient to support the jury’s ultimate finding. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (holding that in unlawful employment practice claim, it is plaintiff’s burden to prove that discrimination was motivating factor in employer’s decision to fire plaintiff).  

              In regard to whether the jury charge properly stated the law, we note that AAA did not object to the jury charge at trial, and therefore waived its right to bring an objection to the charge on appeal. Tex. R. Civ. P. 274. If the trial court has to resolve a legal issue before the jury can properly perform its fact finding role, a party must lodge an objection in time for the trial court to make an appropriate ruling without having to order a new trial. Osterberg v. Peca, 12 S.W.3d 31, 54–55 (Tex. 2000); see also Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex. 1985). Because AAA did not object to the “motivating factor” language used in the jury charge, we do not consider AAA’s argument that a “but for” standard should have been used in question 3. Instead, we review AAA’s sufficiency points under the motivating factor standard used in the jury charge.

              Initially, we note that the evidence established that appellees were fired within a close temporal proximity of making their informal and formal complaints, and that both Rick and Debbie Clodfelter were fired on the same day, allegedly for very different reasons. Hansen made a formal complaint of sexual harassment on April 25, 2001, and was fired on May 7, 2001. Debbie Clodfelter made her formal complaint on May 2, 2002, and Rick Clodfelter made a verbal complaint to Hand on July 30, 2001; the Clodfelters were both fired on August 17, 2001. Temporal proximity may be used as some evidence of a causal connection. Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997); Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 529 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

              We recognize that AAA offered varying reasons as to why each of the appellees was fired, but appellees presented evidence disputing these reasons. For example, while the evidence established that Hansen had previously been convicted of DWI, Hansen noted that she was convicted of DWI seven months before her firing, and that, prior to her filing the complaint, there was no disciplinary action taken against her related to her DWI conviction. After her conviction, Hansen notified her supervisor at AAA, and was assured by her supervisor that the matter would not affect her employment at AAA and that, if necessary, AAA would find her another position in the company. Furthermore, prior to making her sexual harassment complaints, no one at AAA had indicated that the conviction would create any problem with respect to her continued employment at AAA. Finally, Hansen testified that after making her complaints, her access to the warehouse area was restricted, making it more difficult to perform her job duties, and her pay was docked.

              While AAA asserted that it fired Debbie Clodfelter due to a “money discrepancy,” AAA never made any formal allegations of theft against her, and these allegations surfaced, for the first time, only after she made the sexual harassment complaints. Debbie Clodfelter testified that she did not steal any money, and Sackett testified that, prior to the alleged money discrepancy, he never had any reason to question Debbie Clodfelter’s integrity. Additionally, after Debbie Clodfelter made her sexual harassment complaint, Sackett told her that he wished she had not proceeded in that fashion. Moreover, Debbie Clodfelter further testified that after she made her complaint, her hours were reduced and her duties were modified.   

              Although AAA presented evidence that Rick Clodfelter was fired due to a company downsizing, the record established that Rick Clodfelter complained about Carter’s inappropriate behavior in July, and was laid off due to the company downsizing only a few weeks later. Other evidence indicated that, after Rick Clodfelter was fired due to a company downsizing, no other AAA employee was laid off until February 2002, and that, after he was fired, another person was employed to perform at least some of his duties.

              The jury, as the fact finder, had the opportunity to view the witnesses and was the sole judge of their credibility and the weight to give to their testimony. Eberle v. Adams, 73 S.W.3d 322, 327 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 271 (Tex. App.—Houston [1st Dist.] 1991, writ denied). Here, appellees presented evidence disputing the reasons proffered by AAA for their termination, and the jury was free to disbelieve AAA’s proffered reasons. We conclude that the testimony of Hansen, Debbie Clodfelter, and Rick Clodfelter, as well as the testimony of the witnesses presented by AAA, provide more than a scintilla of evidence to support the jury’s findings that appellees’ opposition to a discriminatory practice, the making or filing of a charge of discrimination, or filing of a complaint was a motivating factor in AAA’s decision to fire the appellees. Accordingly, we hold that the evidence was legally sufficient to support the jury’s answers to question 3. In regard to AAA’s argument concerning factual sufficiency, AAA does not cite to any evidence contradicting the jury’s findings that appellees’ opposition to a discriminatory practice, making or filing of a charge of discrimination, or filing of a complaint was a motivating factor in AAA’s decision to fire the appellees. In fact, AAA’s argument concerning factual sufficiency on its second, fourth, and fifth points of error is limited to a single sentence stating that “the evidence presented by the Plaintiffs concerning causation of their termination of employment was so weak as to constitute factually insufficient evidence.” Even assuming this issue was adequately briefed, based on the evidence presented, we conclude that the jury’s answers to question 3 were not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Accordingly, we hold that the evidence was factually sufficient to support the jury’s answers to question 3.   

              We overrule AAA’s second, fourth, and fifth points of error.

    Exemplary Damages

              In its eighth, ninth, and tenth points of error, AAA contends that there was insufficient evidence to support the jury’s finding that AAA acted with malice or reckless indifference to the rights of Hansen, Debbie Clodfelter, and Rick Clodfelter. AAA asserts that there was no conduct “which would calculate to cause substantial injury,” that neither of the appellees “sought any medical or psychological or counseling assistance,” and that there was no evidence that AAA’s management participated in or approved of Carter’s conduct. In reviewing the legal sufficiency of the evidence supporting the exemplary damages awards, we look to all the evidence in the light most favorable to the findings to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. See Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 609 (Tex. 2004).

              Question 5 of the trial court’s charge asked the jury whether it found, by clear and convincing evidence, that AAA engaged in the discriminatory practice with malice or reckless indifference. The jury answered “yes” as to all three appellees, and awarded $25,000 in exemplary damages to Hansen, $45,000 in exemplary damages to Debbie Clodfelter, and $15,000 in exemplary damages to Rick Clodfelter.

              Chapter 21 provides that a complainant may recover punitive damages against a respondent if the complainant demonstrates that the respondent engaged in a discriminatory practice with malice or with reckless indifference to the statutorily protected rights of an aggrieved individual. Tex. Lab. Code Ann. § 21.2585(b) (Vernon Supp. 2004–2005). Here, both Hansen and Debbie Clodfelter testified that they told Carter that his behavior was inappropriate and unwelcome. They further testified that they reported Carter’s behavior to Sackett, and that after making these reports, Carter’s harassment continued. Hansen and Debbie Clodfelter contacted a lawyer, who sent a letter on their behalf, clearly stating their complaints and notifying AAA that it would be illegal to take any retaliatory action against Hansen and Debbie Clodfelter for making such complaints. Hansen and Debbie Clodfelter also complained that, after making their formal sexual harassment complaints, their job duties and conditions were modified. Debbie Clodfelter’s complaint that her hours were cut was supported by the testimony of Sackett, a AAA manager, who testified that he responded to Clodfelter’s complaints by instructing Clodfelter to leave the office whenever Carter was on his way there. Sackett also admitted that he violated AAA’s sexual harassment policy by failing to timely report the harassment complaints. Hand, AAA’s chief executive officer, admitted that the company’s sexual harassment policy was not distributed to at least one of the appellees. Moreover, Hand admitted that Sackett, Carter, and other AAA employees had failed to comply with the company’s sexual harassment policy in responding to Hansen’s and Debbie Clodfelter’s complaints. The record also shows that a former AAA employee testified that she had been sexually harassed by Carter, that she reported Carter’s behavior to a AAA manager and another AAA employee, and that Carter’s inappropriate behavior did not stop. Finally, there was evidence that all three appellees were fired shortly after initiating their sexual harassment complaints, and that Debbie and Rick Clodfelter were fired on the same day.

              We note that AAA’s reliance on Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) in support of its argument that exemplary damages were not warranted is misplaced. In Continental Coffee, the plaintiff was fired due to a violation of an attendance policy. Id. at 451–52. The supreme court, finding that there was no evidence of ill-will, spite, or specific intent to harm, noted that the manager who fired the plaintiff based on the violation of the company’s attendance policy had never met the plaintiff before firing her and had never reviewed her file. Id. at 454-55. There was no evidence in Continental Coffee of a long history of highly inappropriate and harassing behavior similar to the evidence presented to the jury in this case.  

              We find Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 473 (Tex. App.––Austin 2000, pet. denied) more comparable. In Itz, the evidence established that a store manager was aware of a formal sexual harassment complaint and was also aware of his authority and duty to administer the company’s sexual harassment policy. Itz, 21 S.W.3d at 478. The evidence further showed that the store manager failed to take sufficient remedial action or conduct an adequate investigation upon being notified of the complaint. Id. The court held that a reasonable fact finder could have concluded by “clear and convincing evidence that [the manager] acted with conscious indifference to [the employee’s] rights, safety, or welfare.” Id. at 478.  

              After considering the testimony of Hansen, Debbie Clodfelter, and Rick Clodfelter as well as the testimony of the witnesses presented by AAA and reviewing all the evidence in the light most favorable to the findings, we conclude that appellees presented evidence which would permit a reasonable trier of fact to form a firm belief or conviction that Hansen and Debbie Clodfelter were sexually harassed and that AAA retaliated against the appellees with malice or reckless indifference.

              AAA’s arguments that the exemplary damages awards are not sustainable because there was no conduct which would cause substantial injury is without merit. Appellees were entitled to recover exemplary damages by demonstrating that AAA engaged in a discriminatory practice with malice, which may be established by showing a specific intent by AAA to cause substantial injury, or with reckless indifference. Also, appellees were not required to show that they sought any medical or psychological counseling assistance. Accordingly, we hold that the evidence was legally sufficient to support the jury’s answers to question 5.       

              We overrule appellant’s eighth, ninth, and tenth points of error.

     

     

    Conclusion

              We affirm the judgment of the trial court.

     

     

                                                                                      Terry Jennings

                                                                                      Justice



    Panel consists of Chief Justice Radack and Justices Jennings and Hanks.