in Re Solid Software Solutions, Inc., D/B/A Edible Software ( 2015 )

ACCEPTED
000000
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/24/2015 3:43:33 PM
CHRISTOPHER PRINE
CLERK
01-15-00267-CV
NO.____________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
First
FOR THE ________________JUDICIAL DISTRICT OF TEXAS
3/24/2015 3:43:33 PM
AT HOUSTON CHRISTOPHER A. PRINE
Clerk
IN RE SOLID SOFTWARE SOLUTIONS, INC., d/b/a EDIBLE SOFTWARE
Original Proceeding from the 215th Judicial District
Of Harris County, Texas
Trial Court Cause No. 2013-74668
RELATOR SOLID SOFTWARE SOLUTIONS INC. d/b/a EDIBLE
SOFTWARE’ S PETITION FOR WRIT OF MANDAMUS
Gregg M. Rosenberg
Texas State Bar No. 17268750
Tracey D. Lewis
Texas State Bar No. 24090230
ROSENBERG SPROVACH
3518 Travis, Suite 200
Houston, Texas 77002
Telephone (713) 960-8300
Facsimile (713) 621-6670
gregg@rosenberglaw.com
Attorneys for Relators
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 52.3(a), the following is a
complete list of all parties, and the names and addresses of all trial and appellate
counsel:
Relators:
Solid Software Solutions Inc., d/b/a Edible Software
Appellate and Trial Counsel for Relators:
Gregg M. Rosenberg
gregg@rosenberglaw.com
Texas State Bar No. 17268750
Tracey D. Lewis
tracey@rosenberglaw.com
Texas State Bar No. 24090230
ROSENBERG SPROVACH
3518 Travis, Suite 200
Houston, Texas 77002
Telephone (713) 960-8300
Facsimile (713) 621-6670
Respondent:
The Honorable Elaine H. Palmer
Harris County Civil Courthouse
201 Caroline, 13th Floor
Houston, Texas 77002
Telephone: (713) 368-6330
ii
Real Party in Interest
Plaintiff Andrea Farmer
Trial Counsel for Real Party in Interest:
Mr. Jeffrey N. Todd
312 S. Friendswood Drive
Friendswood, Texas 77546
(Telephone) (281) 992-8633
(Facsimile) (281) 648-8633
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ii
STATEMENT OF THE CASE .............................................................................. viii
STATEMENT OF JURISDICTION........................................................................ ix
ISSUES PRESENTED...............................................................................................1
STATEMENT OF FACTS ........................................................................................4
ARGUMENT .............................................................................................................6
Mandamus Relief is Appropriate to Correct Respondent’s Abuse of ......................
Discretion in this Case. ...........................................................................................6
a. Relator’s liability for the unwanted sexual touching of Real Party in Interest,
by Andrea Farmer is limited to a tailored TCHRA scheme that specifically
covers employer liability for sexual harassment ..............................................8
CONCLUSION…………………………………………………………………...20
PRAYER ..................................................................................................................21
APPENDIX
December 13, 2013 Plaintiff’s Original Petition………………………Tab A
January 16, 2015 Defendants’ OriginalAnswer……………………… Tab B
Defendant’s Motion to Dismiss Or, Alternatively Traditional
Motion for Summary Judgment……………………………………….Tab C
Plaintiff’s Response to Defenants’ Motion to Dismiss Or,
Alternatively Traditional Motion for Summary Judgment……………Tab D
Defendants’ Reply to Plaintiff’s Response to Defendants’ Motion
To Dismiss Or, Alternatively Traditional Motion for Summary
Judgment……………………………………………………………….Tab E
Order Denying Defendant’s Motion to Dismiss Or, Alternatively
Traditional Motion for Summary Judgment……………………………Tab F
iv
TABLE OF AUTHORITIES
Cases
Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121 (Tex. App.-San Antonio 1997,
writ denied) .......................................................................................................... xii
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ..........................................13
Calvert v. Brachfeld Law Grp., P.C., No. CIV.A. H-12-3683, 2013 WL 1289394,
(S.D. Tex. Mar. 26, 2013) .....................................................................................20
Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12 (Tex. 2000)..................................... xii
City of Houston v. Fletcher, 166 S.W.3d 479 (Tex. App.- Eastland 2005, pet.
denied)...................................................................................................................14
City of Laredo v. Negrete, No. 04-08-00737-CV, 2010 WL 454921 (Tex. App. –
San Antonio, Feb. 10, 2010, reh’g denied) ...........................................................14
Coppedge v. Colonial Sav. & Loan Ass'n, 721 S.W.2d 933 (Tex. App.-Dallas
1986, writ ref'd n.r.e) ........................................................................................... xii
Denson v. BeavEx Inc., Civ. A. No. H-13-1493, 2014 WL 3543718 (S.D. Tex. July
17, 2014) ...............................................................................................................17
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex.2005)( r’hrg denied)
........................................................................................................................ xi, xiii
Dorn Hecker v. Malibu Grand Prix Corp., 828 F.2d 307, (5th Cir. 1987) ..............12
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000) ...................................... xii
v
Fredericksen v. Halliburton Co., No. H-10-1892, 2011 WL 1232991 (S.D. Tex.
Mar. 31, 2011).......................................................................................................18
Garcia v. Shell Oil Co., 355 S.W.3d 768 (Tex. App. – Houston [1st Dist.] 2011, no
pet.) ...................................................................................................................3, 13
Gormley v. Stover, 907 S.W.2d 448 (Tex.1995) ...................................................... xi
Granger v. Aarons, Inc., 636 F.3d 708 (5th Cir. 2011) ............................................. 7
Harvill v. Westward Communications, L.L.C., 433 F.3d 428 (5th Cir. 2005). 11, 14
In re Crawford & Co., et. al., No. 14-0256, 2015 WL 859087 (Tex. Feb. 27, 2015)
..................................................................................................................... x,xi, xiii
In re Noble Drilling (Jim Thompson), LLC, 449 S.W.3d 625, 630 (Tex. App. –
Houston [1st Dist.] 2014, no pet .............................................................................8
In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 314 (Tex. 2010, r’hrg denied)..x,
xi, 6
Johnson v. Select Energy Servs., L.L.C., No. H-11-3486, 2013 WL 5425115 (S.D.
Tex. Sept. 24, 2013) ................................................................................................7
MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38 (Tex.1998)(r’hrg overruled)
........................................................................................................................ xi, xiii
Pruitt v. International Ass’n of Fire Fighters, 366 S.W.3d 740 (Tex. App. –
Texarkana 2012, no pet.) ............................................................................... 16, 17
Rodriguez v. City of Houston, 250 F. Supp. 2d 691 (S.D. Tex. 2003) ....................11
vi
Rowe v. Sullivan, 967 F.2d 186 (5th Cir.1992)......................................................... 7
Sauceda v. University of Texas at Brownsville, 958 F. Supp. 2d 761 (S.D. Tex. 2013
.................................................................................................................................8
Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex.1994)(r’hrg overruled) ................ xi, xiii
Taylor v. United Parcel Serv., Inc., 554 F.3d 510 (5th Cir. 2008) ............................ 7
Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351 (Tex. 2004) .......... xi
Vance v. Ball State Univ., 133 S. Ct. 2434 (2013) ..................................................10
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 808 (Tex. 2010) ............ x, xii, 13
Woldetadik v. 7-Eleven, Inc., 881 F. Supp. 2d 738 (N.D. Tex. 2012) ......................19
Statutes
42 U.S.C.A. § 2000e et seq. ..................................................................................... 13
Tex. Gov’t Code §22.221...........................................................................................x
Tex. Lab. Code § 21.0015 et seq. ............................................................................ 13
Tex. Lab. Code §21.2585(d)(1) ................................................................................. 3
vii
STATEMENT OF THE CASE
Nature of the
underlying case: The underlying case giving rise to this original proceeding is a
lawsuit filed against Relator Solid Software Solutions, Inc.
d/b/a Edible Software (“Edible” or “Relator”) alleging assault
and invasion of privacy by its former employee, Real Party In
Interest, Andrea Farmer (“Farmer” or “Real Party”). 1 The sole
basis for this mandamus claim is that the common law assault
and invasion of privacy claims brought against Edible are
disguised claims of employment discrimination and the trial
court cannot hear them because Farmer did not fulfill her
mandatory requirement of first filing her claim with the Texas
Workforce Commission – Human Rights Division (“TWC-
CRD”). Though the Texas Supreme Court has held that the
administrative filing is not a jurisdictional prerequisite, it is
mandatory and cannot be circumvented by filing tort claims
instead of claims under Section 21 of the Texas Labor Code.
Respondent: The Honorable Elaine H. Palmer, 215th Judicial
District Court of Harris County, Texas.
Respondent’s action
from which relief
sought: This Mandamus action arises from Respondent’s denying
Relator’s Motion to Dismiss (the claims brought against
Edible) or in the alternative, Motion for Summary Judgment
following a hearing on February 27, 2015. (Tab C).
Orders at issue: Respondent’s Order dated February 27, 2015 on Plaintiff’s
Motion to Dismiss or alternatively, Motion for Summary
Judgment. (Tab F).
1
Farmer also asserted a tort claim against Edible’s Chief Executive Officer, Henri Morris but
that claim is not part of this mandamus action.
viii
STATEMENT OF JURISDICTION
Respondent’s order denying Relator’s Motion to Dismiss and for Summary
Judgment is contrary to the holding of the Texas Supreme Court in Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 808 (Tex. 2010) which confirms that employees
cannot circumvent the mandatory requirement that claims of employment
discrimination be litigated under the parameters of the Texas Labor Code and not
as common law torts. Because of this mandatory requirement, employees are
precluded from asserting employment discrimination claims as common law torts
without availing themselves to the exclusive remedies afforded by the Texas Labor
Code.
This Court has jurisdiction pursuant to Tex. Gov’t Code §22.221. This case
is important to the jurisprudence of the state because it logically follows one recent
Texas Supreme Court opinion, In re
& Co., et. al., No. 14-0256, 2015 WL 859087 (Tex. Feb. 27, 2015) and one that
preceded it by a few years, In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 314
(Tex. 2010, r’hrg denied).
In Crawford, the Supreme Court granted mandamus relief when a plaintiff
attempted to “plead around” the requirements of the Workers Compensation Act to
assert common law claims for negligence, gross negligence, breach of contract,
quantum meruit and breach of the duty of good faith and fair dealing. The Supreme
ix
Court noted its continued prohibition against allowing claimants to “recast claims
to avoid statutory requirements or to qualify for statutory protections.” In re
Crawford, No. 14-0256, 2015 WL 589087, at *5. 2 “Recasting” is precisely what
occurred here, though under a different statute.
Though Crawford was decided on jurisdictional grounds and the
requirement that an aggrieved claimant in an employment discrimination claim
must first administratively file her claim with the TWC-CRD has been held to be
mandatory but not jurisdictional, the same logic applies and mandamus relief is
appropriate given the importance of the issue. The Supreme Court recognized that
although the exclusivity of a statutory remedy under the Labor Code is not as
clear-cut as it is in a claim arising under the Worker’s Compensation Act, it is fair
to imply the exclusivity of the statutory scheme. Waffle House, 313 S.W.3d at 809.
There is a fine and almost non-existent line of distinction between a
jurisdictional and a mandatory prerequisite. The Supreme Court has emphasized
that a statutory requirement commanding action (in this case the filing of a claim
for employment discrimination with the TWC-CRD) remains mandatory even if it
2
For examples, the court cited to Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851
(Tex.2005)( r’hrg denied) (focusing on the essence of plaintiff’s claim and finding it had to meet
MLIIA requirements)(citing MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 38
(Tex.1998)(r’hrg); Gormley v. Stover, 907 S.W.2d 448, 450 (Tex.1995) (per curiam) (finding
that plaintiff’s pleading was an attempt to recast malpractice claim as a DTPA action); Sorokolit
v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994)(r’hrg overruled) (emphasizing that health care
liability claim could not be re-cast as a different claim).
x
is not jurisdictional. In re United Servs., 307 S.W.3d at 307 (citing Univ. of Tex.
Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004).
The Supreme Court has virtually eliminated the distinction between whether
a requirement is jurisdictional or not by instead couching the question in the form
of whether or not the plaintiff has a right to maintain the suit on the basis he is
seeking to maintain it. Instead of this being a jurisdictional question, it simply boils
down to the right of the plaintiff to obtain relief as opposed to the jurisdiction of
the court to afford it. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex.
2000.
Respondent’s order denying the motion to dismiss and for summary
judgment is also in direct conflict with the decision of the Texas Supreme Court in
Waffle House, Inc. as subsequent Texas case law. In Waffle House, the Texas
Supreme Court had previously confirmed the correlation between the exclusivity
of the Workers Compensation Act and the TCHRA stating:
The Workers Compensation Act discussed briefly above expressly
provides that its remedies for injured workers are exclusive. The
exclusivity of the statutory remedy is not as clear-cut in today's case
because the TCHRA lacks an express exclusivity provision. However,
the exclusivity of the statutory scheme can fairly be implied.
Waffle House, 313 S.W.3d at 809.3
3
Footnote 66 of Waffle House is further instructive of the implication substantiating Relator’s
position. It reads… See Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) (citing
Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121, 122–23 (Tex. App.-San Antonio 1997, writ
denied) for proposition that “a statute may be interpreted as abrogating a common-law principle
only when its express terms or necessary implications clearly indicate the Legislature's intent to
xi
Although the question here is not technically one of jurisdiction, the holding in
Crawford is instructive as it relates to the exclusive jurisdiction of claims arising
under the Workers Compensation Act. This case involves the exclusivity of the
TCHRA in claims brought against employers based on actions covered by its
statutory scheme. The Texas Supreme Court concluded in Crawford that the
“[Division of Workers Compensation] has exclusive jurisdiction of [the plaintiff-
employee’s] claims against the [employer], we further conclude that [the
employer] is entitled to mandamus relief.” In re Crawford, 2015 WL 589087, at
*6.4 This Court has jurisdiction to exercise the same relief here. Relator
respectfully asks this Court to correct an error of the lower court that is tantamount
to an abuse of discretion, through granting its Petition for Writ of Mandamus and
thus prevent the lower court from hearing the case as pled.
do so”; and quoting Coppedge v. Colonial Sav. & Loan Ass'n, 721 S.W.2d 933, 938 (Tex. App.-
Dallas 1986, writ ref'd n.r.e), for proposition that repeal of a common-law remedy “by
implication is disfavored and requires a clear repugnance between the common-law and statutory
causes of action”).
4
For examples, the court cited to Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851
(Tex.2005)( r’hrg denied) (focusing on the essence of plaintiff’s claim and finding it had to meet
MLIIA requirements)(citing MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 38
(Tex.1998)(r’hrg overruled) (per curiam) (finding that plaintiff’s pleading was an attempt to
recast malpractice claim as a DTPA action); Sorokolit v. Rhodes, 889 S.W.2d 239, 242
(emphasizing that health care liability claim could not be re-cast as a different claim).
xii
ISSUES PRESENTED
Whether the Trial Court abused its discretion in denying Relator’s Motion to
Dismiss or alternatively, Motion for Summary Judgment when the Plaintiff
failed to exhaust her administrative remedies available under the Texas
Commission of Human Rights Act by recasting her claims asserting common
law tort theories?
INTRODUCTION
The underlying case is a disguised employment discrimination claim
wherein the Real Party in Interest claims that she was sexually harassed by her
supervisor, Henri Morris, Relator’s Chief Executive Officer. Rather than first
filing a claim alleging sexual harassment either with the United States Equal
Employment Opportunity Commission (“EEOC”) or the TWC-CRD she elected to
only allege common law claims of assault and invasion of privacy against Relator.
Because these claims are preempted by the Texas Labor Code and the filing of a
charge of discrimination with the TWC-CRD is a mandatory prerequisite to
bringing such a claim, it is not rightfully before the trial court. A plaintiff cannot
disguise employment discrimination claims as tort claims as a means to circumvent
the mandatory prerequisite. Relator therefore is requesting that this court grant
1
mandamus relief in that Respondent abused its discretion by failing either to grant
summary judgment or to dismiss the case as to Relator.
Relator would be remiss and disingenuous with this court if it did not
recognize and point out that the factual allegations in the underlying action are
deplorable. Real Party in Interest has alleged that Relator’s (now former) Chief
Executive Officer, Henri Morris (not a party to this mandamus proceeding)
engaged in the most egregious forms of sexual assault. As this court will see, in its
review of the record provided, specifically the Motion to Dismiss and the
corresponding response, Morris has pled guilty to a federal criminal charge of
Aggravated Sexual Assault and at the time of the filing of this mandamus
proceeding is awaiting sentencing before the Honorable United States
District Judge, Melinda Harmon.
Real Party’s argument to the trial court has been focused on the shock value
of what has transpired, referring to Relator’s attempt to dismiss as “delusional.”
Relator regrets what has transpired between Morris and the Real Party but the law
does not provide her with the form of remedy that she is seeking against it, hence
the filing of this mandamus petition.
One of the reasons that the Texas Supreme Court exercised mandamus
jurisdiction in United Services was what it considered to be the importance of the
matter. The court recognized that the Defendant had already been through one trial
2
and that it would be a waste of judicial resources to try another before the parties
got to the judicial issue at hand. Relator takes the position that the importance of
this matter on mandamus is parallel to that in United Services. If the Real Party had
properly brought this suit under the Texas Labor Code, for sexual harassment, she
would be subject to the statutory caps and limited in her potential recovery for
compensatory and punitive damages. 5 Instead, under the common law theories she
has sued under, there are no such caps. Given the nature of the claims being
asserted, there is a very viable risk that a jury would assess significant damages
against Relator. Relator will most certainly have an appellate remedy but would be
compelled to post a potentially significant bond during the pendency of a
subsequent appeal. Because the law of pre-emption is so clear, it would be a waste
of judicial resources to have a trial before the legal issues of preclusion could be
examined on appeal and the ramifications to the Relator would not be as severe as
having to post what could amount to be a sizable bond.
5
The TCHRA specifically states that “the sum of the amount of compensatory damages awarded
under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other non-pecuniary losses and the amount of punitive
damages awarded under this section may not exceed, for each complainant: (1) $50,000 in the
case of a respondent that has fewer than 101 employees…” Tex. Lab. Code §21.2585(d)(1); see
also Garcia v. Shell Oil Co., 355 S.W.3d 768, 777 (Tex. App. – Houston [1st Dist.] 2011, no pet.
(citing Waffle House, 313 S.W.3d at 807)).
3
STATEMENT OF FACTS
Relator, Solid Software Solutions, Inc., d/b/a Edible Software was the
employer of Real Party in Interest Andrea Farmer from on or about May 2011 to
August 2011. During her entire employment period, Farmer’s supervisor was
Henri Morris. She reported to him and he exercised management and control over
her job duties. Farmer was informed during her initial interview with Edible that
part of her job function would be to travel on business trips in order to attend trade
shows and develop Edible’s marketing and sales department. (Tab C, at p. 2-3).
Approximately two weeks into her employment with Edible, Farmer
attended a business trip with her supervisor, Morris, to Pennsylvania, New York
and New Jersey. (Tab C, at p 3). Farmer’s allegations in this lawsuit, where she
brings claims of assault and invasion of privacy against Edible, are based on the
events that occurred exclusively during this business trip. She alleged that Morris
was “sexually inappropriate” with her and that Morris had subjected her to
sexually offensive and unwanted touching while on that business trip in addition to
taking naked pictures of her without her consent. (Tab C, at p. 3-5). As part of her
employment, Farmer went on a total of five business trips prior to her resignation.
(Tab C, at p. 2-3 (citing Farmer Dep., at 52:2 -12).
At the time of the alleged incident in May 2011, Farmer believed that she
had been physically and sexually violated and that her supervisor’s behavior was
4
offensive. She testified that in May 2011 she was physically violated by Morris in
a sexual nature on a trip that was a mandatory part of her employment. (Tab C, at
p. 4 (citing Farmer Dep.)).
As a result of Morris’ sexually inappropriate behavior, Farmer felt that she
could not stand being around Morris whom she had to work with, as he was still
her supervisor. She testified that she actively began looking for other employment
in August 2011. (Tab (citing Farmer Dep., 133:21-134:10, Ex. A)). Farmer filed
her lawsuit against Edible on December 13, 2013, claiming that Edible was
“vicariously liable” for the actions of Morris, who at all times relevant to her
claims was “acting within the scope of his employment” and “exercised control
over [Farmer] by virtue of his managerial authority as President and CEO.” (Tab
A, at ¶11). Farmer was well aware of the incidents that formed the basis of her
lawsuit against her former employer and the negative effects Morris’ actions had
on her employment as of May 2011. She took no legal action prior to her
December 13, 2013 lawsuit initiated in state court and did not institute any
administrative process to address any claim against Edible with either the Texas
Workforce Commission and/or the Equal Employment Opportunity Commission.
5
ARGUMENT
Mandamus Relief is Appropriate to Correct Respondent’s Abuse of
Discretion in this Case.
The Texas Supreme Court recently found mandamus was appropriate to
correct the erroneous denial of a motion for summary judgment. In re United
Servs., 307 S.W.3d at 299 (granting relief to enforce limitations after relator had
already endured trial in incorrect jurisdiction). In the instant case, denying
mandamus relief would thwart the legislative intent of the Texas Commission on
Human Rights Act (“TCHRA”) which mandates that claims brought by employees
against employers for conduct that constitutes sexual harassment (essentially a
subset of a gender discrimination claim) must be brought under the TCHRA
statutory scheme for employer liability.
It is also required under the TCHRA, as a mandatory prerequisite, that such
aggrieved individuals follow certain administrative procedures prior to filing suit
in state court. Real Party in Interest filed tort claims against Relator for conduct of
her former supervisor, Morris, claiming that he was “employed in a managerial
capacity” by Relator, was “acting within the scope of his employment” and thus
Relator is liable for his conduct against her. Not to minimize what happened to
Real Party, but this is nothing more than an employment discrimination claim for
sexual harassment (covered under the Labor Code) being recast as a tort claim
6
presumably because Real Party allowed the Labor Code’s limitations period to
lapse.6
As will be explained herein, the TCHRA is undoubtedly, by legislative
intent, the statutory scheme promulgated for employer liability in this context.
Relator argued to the Respondent in its Motion to Dismiss or alternatively Motion
for Summary Judgment (“Motion”) that due to the preemptive nature of the
TCHRA, when a plaintiff attempts to avoid the statutory scheme by asserting
common law claims against an employer and even further fails to adhere to the
administrative requirements mandated by the TCHRA, the claims must be
dismissed as a matter of law because the mandatory prerequisites had not been
satisfied.
Respondent’s Order Denying Relator’s Motion under these circumstances is
tantamount to an abuse of discretion in that the law requiring the administrative
filing is mandatory prior to bringing suit for sexual harassment sounding claims.
Relator respectfully requests that this court provide mandamus relief as the
6
Conceivably Real Party could have filed her claim with the TWC-CRD after the 180 day
limitations period expired by advancing an equitable tolling argument. It is undisputed that
federal law provides that the 180 day filing period is subject to equitable tolling. See Granger v.
Aarons, Inc., 636 F.3d 708, 711 (5th Cir. 2011); see also Taylor v. United Parcel Serv., Inc., 554
F.3d 510, 521 (5th Cir. 2008); Johnson v. Select Energy Servs., L.L.C., No. H-11-3486, 2013 WL
5425115, at *3 (S.D. Tex. Sept. 24, 2013 (citing Rowe v. Sullivan, 967 F.2d 186, 192 (5th
Cir.1992) (“ ‘[E]quitable tolling may apply where the claimant has vigorously pursued his
action, but has inadvertently missed deadlines due to his or her lack of sophistication with the
procedural requirements of Title VII claims.’ ”).
7
Respondent failed to dismiss this case where the Real Party did not adhere to the
aforementioned statutory administrative prerequisites of the TCHRA applicable to
her causes of action and seeks to cure such failure by simply asserting tort claims
for the same conduct: an action the Texas Supreme Court has explicitly
prohibited.
a. Relator’s liability for the unwanted sexual touching of Real Party in
Interest, by Andrea Farmer is limited to a tailored TCHRA scheme that
specifically covers employer liability for sexual harassment.
A trial court clearly abuses its discretion if it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law or if it clearly
failed to analyze the law correctly or apply the law correctly to the facts. In re
Noble Drilling (Jim Thompson), LLC, 449 S.W.3d 625, 630 (Tex. App. – Houston
[1st Dist.] 2014, no pet). It is Relator’s contention that the denial of its Motion
below, as to the claims asserted by Real Party against it constitutes such abuse.
“The TCHRA … established a ‘comprehensive administrative review
system,’ under which the ‘exhaustion of administrative remedies is a mandatory
prerequisite to filing a civil action alleging violations of the TCHRA…TCHRA
claims must generally be filed within a 180-day limitations period. This 180-day
limitations period has been construed by a federal court as “mandatory and
jurisdictional” under Texas law.” Sauceda v. University of Texas at Brownsville,
958 F. Supp. 2d 761, 766 (S.D. Tex. 2013). The issue here is not the existence of
8
the mandatory prerequisites but whether the TCHRA applied to the claims asserted
against Relator in the first place. Relator will show herein that based on the clear
language of the statute and its application within relevant case precedent, the
factual basis for the claims brought against it by Real Party are undeniably within
the purview of the TCHRA, triggering the TCHRA’s mandatory prerequisites and
preempting Real Party’s common law claims. Real Party failed to bring a TCHRA
claim and failed to adhere to any of the administrative prerequisites. Therefore,
Relator respectfully requests that this Court provide relief from Respondent’s
erroneous denial of its Motion.
Real Party’s common-law causes of action for assault and invasion of
privacy are based on the same course of conduct as the statutory TCHRA cause of
action for workplace sexual harassment. In Waffle House, the Texas Supreme
Court held that if statutory and common-law causes of action are based on the
same course of conduct, common-law recovery would, “undermine the limitations
placed on the legislative remedy directed at the same conduct.” Waffle House, 313
S.W.3d at 808. The Texas Supreme Court rejected common law causes of action
where they would provide alternate remedies for the same conduct already
addressed by the Legislature in the TCHRA.
In her Response to Relator’s Motion below, Real Party asserted that the
relevant actions occurred on “business-related trips” and that those trips “arose out
9
of Morris’ capacity as President and CEO of Edible and the supervisor of [Farmer]
and the company should be held liable for the intentionally tortious acts of its
principal.” (Tab D, at p. 3). The argument fails because the TCHRA is preemptive
when the complained of common law claims are entwined with the complained-of
harassment. Waffle House, 313 S.W.3d at 799.
There is no dispute in this case that Morris was Real Party’s supervisor
during her employment with Relator. (Tab D, at p. 3; Tab C, at p. 1; Tab A, at
¶11). Under the TCHRA, a plaintiff alleging a hostile work environment sexual
harassment claim, where a supervisor inflicted the sexual harassment, must
establish that (1) she belonged to a protected class; (2) she was subjected to
unwelcome sexual harassment; (3) the harassment was based on sex; and (4) the
harassment affected a term, condition, or privilege of employment. Vance v. Ball
State Univ., 133 S. Ct. 2434 (2013) (…when the harassment arises from a
supervisor's conduct, the plaintiff does not have to prove the fifth element—that
the employer was negligent; instead, “an employer may be vicariously liable for its
employees' creation of a hostile work environment.”).
As Relator stated in its Motion, “[C]ourts have traditionally defined
“unwelcome sexual harassment” as “sexual advances, requests for sexual favors,
and the other verbal or physical conduct of a sexual nature that is unwelcome in the
sense that it is unsolicited and is undesirable or offensive to the employee.” (See
10
Def.’s M/MSJ, at p. 10); see also Rodriguez v. City of Houston, 250 F. Supp. 2d
691, 699 (S.D. Tex. 2003). Real Party made no other argument as to the fact that
Morris’ actions did not fall under “unwelcome sexual harassment” that the
TCHRA was designed to cover as to employer liability except to state that this was
a “mischaracterization” of her claims and that it “would be laughable.” (Tab D, at
p. 30).
In reviewing Relator’s Motion to Dismiss and Motion for Summary
Judgment the Respondent ignored Relator’s competent evidence and argument that
the facts in this case squarely fall under the “unwelcome sexual harassment”
covered by a TCHRA hostile work environment sexual harassment claim. The
deliberate and unwanted touching of an employee’s intimate body part can
constitute severe sexual harassment. Waffle House, 313 S.W.3d at 808 (“[T]he
unwanted sexual touching that underlies her negligence claim was assaultive
because Williams regarded it as sexually inappropriate, provocative, and
offensive—that is, because it amounted to sexual harassment made unlawful by the
TCHRA.”); see also Harvill v. Westward Communications, L.L.C., 433 F.3d 428,
435 (5th Cir. 2005)
The physical and sexual violations Real Party complained about occurred on
a business trip. (Tab C, at p. 4-5). In fact, Real Party went through great pains to
alert the trial court as to Defendant Morris’ Superseding Indictment and Plea
11
Agreement in the related criminal case. (Tab D, at pp. 4-5). She also made it a
point as part of the “relevant facts” set forth in response to Relator’s Motion that
while she was on a business trip with Morris he:
• Massaged her neck and back which she told him made her
uncomfortable. (Tab D, at p, 6).
• He held her hand which made her feel very uncomfortable. (Tab D, p.
6).
• That she felt physically violated in her private female regions (Tab D,
p. 6).
• That she felt she had “been touched” in her female regions but not like
she had been raped. (Tab D, p. 6).
As Relator explained in its Motion, and as is in line with Texas case law, this
type of unwanted, inappropriate, offensive sexual touching by a supervisor on a
business trip is covered under the TCHRA specifically to hold an employer liable
for such egregious conduct of its employees. It does not matter that the incidents
took place outside of the traditional workplace while on business trips for the
TCHRA to apply. (See Tab C, at p. 13 (citing Dorn Hecker v. Malibu Grand Prix
Corp., 828 F.2d 307, 308 (5th Cir. 1987) (plaintiff filed suit for sexual harassment
pursuant to Title VII and the court considered it under Title VII’s purview although
the actions took place away from the actual workplace while on business trips).
Respondent’s determination in light of these facts and the law shows a clear failure
of Respondent to analyze the law correctly and apply it to the facts in this case.
12
In addition to her incorrect insinuation that the TCHRA did not apply
because Defendant Morris’ actions were not the type of “unwelcome sexual
harassment” covered under the statute, Real Party also incorrectly asserted that the
TCHRA had no application to her claims because Defendant Morris’ actions did
not affect a, “term, condition, or privilege of the plaintiff’s employment.” (Tab D,
at p. 30 - 31).
A claim of sexual harassment is actionable under Title VII (and the
TCHRA) 7 only against an employer and only when (1) the employer takes a
tangible employment action based on whether the employee submits to the sexual
demand or (2) the sexual harassment is said to constructively alter the employee's
terms or conditions of employment. Garcia v. Shell Oil Co., 355 S.W.3d 768, 776-
77 (Tex. App. – Houston [1st Dist.] 2011, no pet. Even a single incident of sexual
assault sufficiently alters the conditions of the victim’s employment and clearly
creates an abusive work environment for the purposes of Title VII (or TCHRA)
liability. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (emphasis
added); see also Harvill v. Westward Comm., LLC, 433 F.3d 428, 434 (5th Cir.
2005)
7
Texas courts look to analogous federal law in applying the state act. Waffle House, (citing 42
U.S.C.A. § 2000e et seq.; Tex. Lab. Code § 21.0015 et seq.)).
13
Real Party cannot assert Morris’ actions on one hand constitute sexual assault
against her while he was “employed within a managerial capacity” and “acting
within the scope of his employment” but on the other hand state her claims “have
absolutely nothing to do with the TCHRA.” (Tab D, at p. 41; Tab A, at ¶11). Real
Party argued at great length that Morris’ actions were egregious, offensive, and
provocative and constituted sexual assault. Her contradictory assertions are simply
an attempt to avoid the TCHRA because of the administrative requirement that at
this point, cannot be cured and should have resulted in a dismissal of her claims.
Additionally, “[C]entral to the court's inquiry into a hostile work
environment sexual harassment claim is whether the alleged harasser's actions have
undermined the victim's workplace competence, discouraged h[er] from
remaining on the job, or kept h[er] from advancing in h[er] career.” City of
Laredo v. Negrete, No. 04-08-00737-CV, 2010 WL 454921, at *5 (Tex. App. –
San Antonio, Feb. 10, 2010, reh’g denied) citing City of Houston v. Fletcher, 166
S.W.3d 479, 490 (Tex. App.- Eastland 2005, pet. denied)) (emphasis added). As
Relator pointed out in its Motion, Real Party testified that due to Morris’ actions
she no longer wanted to work under his supervision, was uncomfortable and started
looking for another job. (Tab C, at p. 15). Specifically, she spoke with Morris
about what happened while on the business trip and told him his actions were
inappropriate, wrong and that she needed to find another job. (Tab C, Farmer Dep.
14
at pp. 106:5-7, 29:18-25).8 As the law states, this is central to a hostile work
environment sexual harassment claim and is yet another reason Respondent’s
denial of Relator’s Motion as to the applicability of the TCHRA and its bar to
common law tort claims against Relator as the employer was erroneous and a clear
abuse of discretion.
Real Party was required to proceed “solely under a statutory claim unless
there are additional facts, unrelated to sexual harassment, to support an
independent tort claim for assault” against Relator. Those additional facts for
liability against Relator as the employer do not exist. The Texas Supreme Court
clearly articulated the standard in Waffle House as follows:
Today’s question is whether employer liability for unwanted sexual
touching by a coworker (simple assault under Texas law given its
“offensive or provocative nature) is limited to a tailored TCHRA
scheme that specifically covers employer liability for sexual
harassment. We think the answer should be yes.
Waffle House, 313 S.W.3d at 803. There is no dispute as a matter of law that Real
Party’s claims against relator should have been brought under the TCHRA as her
exclusive remedy for employer liability. “[T]he touchstone is not availment, but
availability of [Chapter 21] remedies.” Pruitt v. International Ass’n of Fire
Fighters, 366 S.W.3d 740, 748 (Tex. App. – Texarkana 2012, no pet.) Because
8
Relator asserts that this testimony alone calls into question the propriety of Real Party’s
assertion that her claims have nothing to do with the terms conditions and privileges of her
employment.
15
Farmer’s claims “could have” been raised under Chapter 21, the court should have
found that Relator’s Motion was the correct vehicle to dismiss her common-law
claims against Relator when she failed to exhaust those remedies. Id. Under these
circumstances, Respondent’s opposite determination was a misapplication of the
law.
Texas case law subsequent to Waffle House is consistent with the assertion
that a plaintiff-employee cannot avoid the statutory scheme of the TCHRA when
the issues giving rise to the alleged common law cause of action should have been
resolved through the TCHRA. In Pruitt, an employee brought common law claims
against the labor union however, due to the existence of conduct covered under the
TCHRA the trial court dismissed the claims for lack of subject matter jurisdiction 9
and the appellate court affirmed finding (1) such claims had to be filed with the
Texas Workforce Commission before bringing suit and (2) the common law tort
claims were preempted by the TCHRA. The Pruitt court held as follows:
Our reading of the petition, along with counsel’s argument to the
court, lead us to conclude that the facts giving rise to Pruitt’s
common-law causes of action were inextricably intertwined with the
facts giving rise to complaints that could have been resolved through
Chapter 21’s administrative procedures. We find that a racial
discrimination complaint was the gravamen of Pruitt’s action and that
allowing his complaint to proceed without meeting the requirement of
9
Even after United Services, where the Supreme Court determined that the administrative filing
was mandatory, as opposed to jurisdictional, Relator finds that several state and federal courts
still consider (or at least refer to) the prerequisite as jurisdictional.
16
exhaustion of remedies would “collide with the elaborately crafted
statutory scheme.”
Pruitt, 366 S.W.3d at 749-750.
Similarly here, the facts giving rise to Real Party’s common law claims that
occurred while on a business trip where Real Party was employed by Relator are
inextricably intertwined with facts giving rise to complaints that should have been
resolved through Chapter 21’s administrative procedures as to Relator’s employer
liability (emphasis added). Therefore, Relator asserts that the conclusion in the
instant case should be identical to that of Pruitt: “[B]ased on Texas Supreme Court
precedent, [Real Party’s] common-law claims [are] pre-empted by Chapter 21.”
Pruitt, 366 S.W.3d at 750.
In Denson v. BeavEx, Inc., the United States District Court of the Southern
District of Texas agreed with and applied the holding of Waffle House, similarly
finding that plaintiff’s tort claim was preempted by the TCHRA. Denson v. BeavEx
Inc., Civ. A. No. H-13-1493, 2014 WL 3543718, at *10 (S.D. Tex. July 17, 2014).
Citing to Waffle House, the Denson court stated, “that the Labor Code “implements
a comprehensive administrative regime, ... affords carefully constructed remedies,
and [to allow] the alternative remedy would render the limitations in the [Labor
Code] utterly meaningless and defeat the [Labor Code's] comprehensive statutory
scheme.” Id. at *10 (internal citations omitted). Therefore, this District has
recently applied Waffle House’s holding to prevent plaintiffs from skirting the
17
administrative prerequisites of the TCHRA by asserting tort claims against
employers based on conduct identical to that which the TCHRA was designed to
address.
Previously, in Frederickson v. Halliburton Co., the Southern District of
Texas solidified the holding of Waffle House and its applicability to employer
liability for unwanted sexual touching in the employment context. The
Halliburton court stated as follows:
Where the gravamen of a plaintiff's case is TCHRA-covered
harassment, the Act forecloses common-law theories predicated on
the same underlying sexual-harassment facts. Employer liability for
unwanted sexual touching by a coworker ... is limited to a tailored
TCHRA scheme that specifically covers employer liability for sexual
harassment.
The TCHRA necessarily abrogates common law claims based on the
same conduct because there exists ‘a clear repugnance’ between” the
TCHRA and common law causes of action. This repugnance exists
because the TCHRA is an “elaborately crafted statutory scheme” that
addresses sexually harassing conduct. The TCHRA's purpose would
be undermined by allowing a plaintiff to proceed under a common law
theory because of conflicts between the TCHRA and common law
relating to administrative review, limitations, substantive elements of
the claim, affirmative defenses and remedies.
Fredericksen v. Halliburton Co., No. H-10-1892, 2011 WL 1232991, at *3 (S.D.
Tex. Mar. 31, 2011).
In Woldetadik v. 7-Eleven, Inc., yet another federal court held that the
“TCHRA precludes a plaintiff from bringing state common law claims that are
based on conduct that is actionable under the TCHRA’s discrimination and anti-
18
retaliation provision.” Woldetadik v. 7-Eleven, Inc., 881 F. Supp. 2d 738, 744 (N.D.
Tex. 2012).
The overwhelming prevailing case law is clearly at odds with the
Respondent’s action in denying Relator’s Motion as to Real Party’s tort claims
brought against it as her former employer. Employer liability for unwanted sexual
touching by a supervisor is unequivocally covered under the statutory scheme of
the TCHRA and preempts tort claims against an employer for such conduct. It is
important to point out to the Court that Relator is not asserting Real Party cannot
bring an individual tort claim against her harasser if she is able to meet the
requisite elements. In fact, the Court in Waffle House specifically stated that its
holding, “did not bar a tort claim against the harasser/assailant individually.” Such
is not a part of this request for mandamus relief. However, it is still without
question that, “employer liability for unwanted sexual touching by a coworker
(simply assault under Texas law given its ‘offensive or provocative’ nature) is
limited to a tailored TCHRA scheme that specifically covers employer liability for
sexual harassment.” Calvert v. Brachfeld Law Grp., P.C., No. CIV.A. H-12-3683,
2013 WL 1289394, at *2 (S.D. Tex. Mar. 26, 2013) (citing Waffle House, 313
S.W.3d at 803.)
Permitting the trial court in this case to improperly deny Relator’s Motion
would allow Real Party to continue litigation against it despite her failure to satisfy
19
the required administrative prerequisites. Additionally, this improper maintenance
of the case would create uncertainty within the system and interfere with the
“established comprehensive administrative review system” clearly outlined within
the TCHRA for employer liability. For these reasons, mandamus relief is an
appropriate remedy to correct the abuse of discretion resulting from Respondent’s
denial of Relator’s Motion and challenges in this case.
CONCLUSION
It is evident that following United Services, where the Texas Supreme Court
held that the requirement that an aggrieved plaintiff asserting an employment
discrimination claim must first file a charge of discrimination is mandatory as
opposed to jurisdictional, that there has been some confusion. Appellate cases that
followed, including Pruitt, still refer to the requirement as jurisdictional. While the
path to mandamus relief would be clearer if the requirement was jurisdictional in
nature, the reality is that there is no appreciable difference between a mandatory
and a jurisdictional prerequisite. Either way, the plaintiff is required to file a charge
before moving forward. Real Party didn’t satisfy this requirement. United Services
was one example where the Supreme Court demonstrated that mandamus relief
would be appropriate where judicial resources would be wasted had mandamus
relief not been granted. This case presents a similar issue because even if trial
were to proceed, the result is clear, based on the undisputed facts. Real Party
20
doesn’t have a viable claim against the Relator in the format that she chose to
proceed to trial on. Mandamus relief is therefore appropriate in this situation.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator respectfully prays that
this Court grant its Petition for Writ Of Mandamus and order the Trial Court to
reverse or vacate its Order of February 27, 2015 denying its Motion to Dismiss or
alternatively, Motion for Summary Judgment and such other and further relief in
law or in equity, general or special, to which Relators may be entitled.
Respectfully Submitted,
/s/ Gregg M. Rosenberg
Gregg M. Rosenberg
Texas State Bar No. 17268750
Tracey D. Lewis
Texas State Bar No. 24090230
ROSENBERG SPROVACH
3518 Travis, Suite 200
Houston, Texas 77002
Telephone (713) 960-8300
Facsimile (713) 621-6670
Attorneys for Relators
CERTIFICATION OF COMPLIANCE WITH APPELLATE RULE 52.3(J)
Undersigned counsel hereby certifies that he has reviewed Relators’ Petition
for Writ of Mandamus and concludes that every factual statement in this petition is
supported by competent evidence included in the appendix or record, as required
by Appellate Rule 52.3(j).
/s/ Gregg M. Rosenberg
Gregg M. Rosenberg
21
CERTIFICATION OF COMPLIANCE WITH APPELLATE RULE 9.4(I)
Undersigned counsel hereby certifies that this document contains 6659
words, as indicated by the word-count function of the computer program used to
prepare it, as provided by Appellate Rule 9.4(i).
/s/ Gregg M. Rosenberg
Gregg M. Rosenberg
22
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 24th day of March, 2015, a true
and correct copy of the foregoing document has been served as follows on all other
parties in compliance with Tex. R. App. P. 9.5(b):
Respondent:
Judge Elaine H. Palmer
Harris County Civil Courthouse
201 Caroline, 13th Floor
Houston, Texas 77002
Via Hand Delivery
Counsel for Real Parties in Interest:
Mr. Jeffrey N. Todd
312 S. Friendswood Drive
Friendswood, Texas 77546
(281) 992-8633 (Tel)
(281) 648-8633
Via Hand Delivery and E-mail
/s/ Gregg M. Rosenberg
Gregg M. Rosenberg
23