Godoy, Judy and Audrey Perez v. Cancer Specialists of South Texas, P.A.

NUMBER 13-99-365-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JUDY GODOY AND AUDREY PEREZ

, Appellants

v.

CANCER SPECIALISTS OF SOUTH TEXAS, P.A.

, Appellee.

___________________________________________________________________

On appeal from the 117th District Court of Nueces County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Rodriguez, and Seerden⁽¹⁾ Opinion by Justice Rodriguez

Appellants, Judy Godoy and Audrey Perez, appeal from a summary judgment entered in favor of Appellee, Cancer Specialists of South Texas, P.C. (Cancer Specialists).⁽²⁾ Appellants sued Cancer Specialists under the Texas Commission on Human Rights Act (TCHRA), found in sections 21.001-.556 of the Texas Labor Code; Godoy alleging quid pro quo sexual harassment and Perez alleging retaliatory termination. Each appellant also asserted a claim of intentional infliction of emotional distress. Cancer Specialists moved for summary judgment arguing Godoy's and Perez's allegations did not rise to the level of quid pro quo sexual harassment or retaliatory discharge respectively, and did not amount to outrageous conduct necessary for the intentional infliction of emotional distress. The trial court granted summary judgment on all causes of action. By four issues, appellants complain that the trial court erred in granting the summary judgments in favor of Cancer Specialists. By a fifth issue, appellants address collateral issues of limitations and vicarious liability. We affirm in part, and reverse and remand in part.

Standard of Review

In their first issue, appellants contend that the trial court erred by not applying the proper summary judgment standard. There is nothing in the record before us which affirmatively shows the trial court engaged in any improper summary judgment review. On the face of the record, it appears the trial court properly considered the pleadings and evidence before it and made its rulings. Accordingly, we overrule appellants' first issue.

However, appellants raised an important issue regarding whether the summary judgments were granted on traditional grounds or "no-evidence" grounds, the determination of which will necessarily affect our review of this case. The distinction must be made to avoid an improper shifting of the burden of proof. See Murray v. Dyke, No. 13-99-533-CV, 2001 Tex. App. LEXIS 1412, at *3, *7 n.3 (Tex. App.--Corpus Christi Mar. 1, 2001, no pet. h.). The movant seeking summary judgment on traditional grounds must establish that no genuine issue of material fact exists to be entitled to judgment as a matter of law, whereas, the movant in a no-evidence summary judgment need only state the elements for which there is no evidence, and no evidence need be attached. See Tex. R. Civ. P. 166a(c) & 166a(i); Murray, 2001 Tex. App. LEXIS 1412, at *3-4. The no-evidence summary judgment shifts the burden of proof to the plaintiff to present enough evidence to be entitled to a trial. See Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex. App.--Houston [14th Dist.] 1999, no pet.); see also Murray, 2001 Tex. App. LEXIS 1412, at *4. Importantly, in Murray, we concluded "[w]hen it is not readily apparent to the trial court that summary judgment is sought under rule 166a(i), the court should presume that it is filed under the traditional summary judgment rule and analyze it according to those well-recognized standards." Murray, 2001 Tex. App. LEXIS 1412, at *6.

Therefore, we look to the record to determine how we will review appellee's motions for summary judgment. Cancer Specialists' motions intermix language from the traditional summary judgment rule and the no-evidence rule; assert affirmative defenses; fail to clearly state under which rule summary judgment is sought; and attach evidence that would be appropriate for a traditional motion, but not a no-evidence motion. Further, the order fails to clarify whether the motion was granted on no-evidence grounds or traditional grounds. See id. at *7 (order granting summary judgment should clarify whether motion is granted on no-evidence grounds or traditional grounds). Because it is not readily apparent to this Court that Cancer Specialist sought summary judgment under rule 166a(i), we will presume that the summary judgment motions were filed under the traditional rule and analyze them according to those well-recognized standards. We will review the trial court's granting of the motions de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Texas Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.--Corpus Christi 2000, pet. denied).

In reviewing a traditional motion for summary judgment, the movant must demonstrate (1) that there existed no genuine issue of material fact regarding an essential element of the plaintiff's case, and (2) that judgment should be granted as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). If the movant negates an element of the plaintiff's claim, the plaintiff must produce controverting evidence raising a fact issue on the element or elements negated. See Stolle v. Baylor College of Medicine, 981 S.W.2d 709, 712 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). We must presume all evidence favorable to the non-movants to be true, and indulge all reasonable inferences and resolve any doubts in their favor. See Nixon, 690 S.W.2d at 548-49. When a summary judgment order does not specify the grounds upon which the ruling was granted, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

Godoy's Quid Pro Quo Sexual Harassment Claim

In her second issue, Godoy contends the trial court erred by granting Cancer Specialists' summary judgment on her quid pro quo sexual harassment claim because a genuine issue of material fact exists regarding the element of causation.

Godoy alleged Forrest Smith, Cancer Specialists' office manager, sexually harassed her between October and December 1995.⁽³⁾ Cancer Specialists presented summary judgment evidence that Godoy resigned from her job in January 1996, after being reprimanded for putting the wrong patient's name on an x-ray request. Godoy subsequently made the decision not to resign, with the understanding she would be on probation for sixty days. However, in March 1996, while on probation, Godoy was terminated after a physician complained about her using the phone and ignoring him when he needed assistance. Godoy asserts, nonetheless, that her termination resulted from her refusal of Smith's alleged advances.

The TCHRA governs employment discrimination, providing in pertinent part:

An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin or age, the employer:

(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment. . . .

Tex. Labor Code Ann. § 21.051 (Vernon 1996). Sexual harassment, a form of employment discrimination, may be actionable as quid pro quo harassment or hostile work environment harassment. See Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 658 (Tex. App.--Corpus Christi 1994, writ denied) (citations omitted).

The elements of a quid pro quo sexual harassment claim include: (1) the employee was a member of a protected class; (2) the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) the harassment complained of was based on sex; (4) the employee's submission to the unwelcome advances was an express or implied condition for receiving job benefits or the employee's refusal to submit to a supervisor's sexual demands resulted in a tangible job detriment; and (5) the existence of respondeat superior liability. See Ewald, 878 S.W.2d at 658-59. In order to prevail on a quid pro quo sexual harassment claim, "the employee bears the burden of proof to support charges that submission to the unwelcome sexual advances of supervisory personnel was an express or implied condition for receiving job benefits or that a tangible job detriment resulted from the employee's failure to submit to the sexual demands of supervisory employees." Id. at 658 (citations omitted).

The Texas Supreme Court recently defined the proper causation standard for establishing liability for all TCHRA unlawful employment practice claims. See Quantum Chemical Corp. v. Toennies, No. 99-1042, 2001 Tex. LEXIS 14, at *5 & *18 (Tex. Mar. 8, 2001). Section 21.125 of the Texas Labor Code provides, in relevant part:

Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice. . . .

Tex. Labor Code Ann. § 21.125(a) (Vernon Supp. 2001). Enforcing the plain meaning of this section, the supreme court held that "this statute establishes 'a motivating factor' as the plaintiff's standard of causation in a TCHRA unlawful employment practice claim, regardless of how many factors influenced the employment decision." Quantum Chemical, No. 99-1042, Tex. LEXIS 14, at *18.

We have reviewed the summary judgment de novo, and have presumed all evidence favorable to Godoy, indulged all reasonable inferences and resolved any doubts in her favor. While there is evidence that the decision to dismiss Godoy was based on legitimate dissatisfaction with Godoy's work performance, we conclude, under the motivating factor standard set out in Quantum Chemical, that a genuine issue of material fact remains on the causation element of Godoy's quid pro quo sexual harassment claim. Accordingly, the trial court erred in granting Cancer Specialists' summary judgment against Godoy on this cause of action. Appellants' second issue is sustained.

Perez's Retaliation Claim

By issue three, Perez contends the trial court erred in granting summary judgment on her retaliation claim. Perez contends factual disputes exist regarding the causal connection between the protected conduct in which Perez engaged and the adverse employment actions to which she was subjected. We agree.

Perez, like Godoy, worked as a medical assistant at Cancer Specialists. In June 1996, Perez complained to the president of Cancer Specialists about Smith's alleged inappropriate behavior.⁽⁴⁾ Later, at a meeting regarding her concerns, Smith apologized to her. Nonetheless, Perez asserts that as a result of her complaint, Smith retaliated against her.⁽⁵⁾

One year after Godoy complained about Smith's behavior, Perez filed a charge of discrimination with the Equal Employment Opportunity Commission and the Corpus Christi Human Relations Commission. Perez charged that she was a victim of sexual harassment and retaliation. Perez claims that although she continued to work for Cancer Specialists, the retaliation against her continued.⁽⁶⁾

Approximately six months after Perez filed her charge of discrimination, as part of a reorganization of Cancer Specialists, two medical assistant positions, including Perez's, were eliminated. The reorganization incorporated the use of sophisticated technology, high dose chemotherapy and very toxic drugs, and required individuals with a higher level of skills. Registered nurses were required to perform the work, rather than medical assistants. The clerical duties were assumed by a clerk.

An employer commits unlawful retaliation if the employer discriminates against a person who opposes a discriminatory practice; makes or files a charge; files a complaint; or testifies, assists or participates in any manner in an investigation, proceeding, or hearing. See Tex. Labor Code Ann. § 21.055. As set out in Quantum Chemical, the standard of causation for all TCHRA unlawful employment practice claims is whether the complaint was a "motivating factor" for the alleged retaliatory behavior and termination, regardless of how many factors influenced the employment decisions. See Quantum Chemical, No. 99-1042, 2001 Tex. LEXIS 14, at *18.

As in Godoy's case, while there is evidence that the decision to dismiss Perez was based on legitimate business restructuring, we cannot conclude, under the motivating factor standard set out in Quantum Chemical, that no genuine issue of material fact exists as to causation. Accordingly, having reviewed the summary judgment de novo, and having presumed all evidence favorable to Perez, indulged all reasonable inferences and resolved any doubts in her favor, we conclude a genuine issue of material fact remains on the causation element of Perez's retaliation claim. The trial court erred in granting Cancer Specialists' summary judgment against Perez on this cause of action. Appellants' third issue is sustained.

Intentional Infliction of Emotional Distress Claims

By their fourth issue, appellants contend the trial court erred in granting Cancer Specialists' summary judgment on their intentional infliction of emotional distress claims. They allege TCHRA does not preclude this cause of action, and claim there is evidence to support each element.

Without reaching the issue of whether a common law claim for intentional infliction of emotional distress is preempted by the TCHRA,⁽⁷⁾ we conclude, as a matter of law, that appellant's conduct did not rise to the level of extreme and outrageous conduct. See Shaheen v. Motion Indus., Inc., 880 S.W.2d 88, 92 (Tex. App.--Corpus Christi 1994, writ denied) (whether defendant's conduct was extreme and outrageous is initially question of law).

Liability for intentional infliction of emotional distress is imposed only where the conduct has been so outrageous in character, and so extreme in degree, as "[to go] beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993). Even conduct which may satisfy the elements of a sexual harassment claim may not support a claim for intentional infliction of emotional distress. See Ewald, 878 S.W.2d at 660-61 (actions constituting sexual harassment did not establish plaintiff's claim of intentional infliction of emotional distress). Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions. See Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369-70 (Tex. App.--San Antonio 1992, writ denied). Only in the most unusual of employment cases does the complained of conduct move outside the realm of an ordinary employment dispute and into the classification of extreme and outrageous conduct required for intentional infliction of emotional distress. See Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 920-921 (Tex. App.--San Antonio 1997, writ denied) (citation omitted); Ewald, 979 S.W.2d at 656, 660-61 (summary judgment affirmed for employer because complained of conduct not outrageous); Garcia v. Andrews, 867 S.W.2d 409, 410, 412 (Tex. App.--Corpus Christi 1993, no writ) (same). Furthermore, discharge from employment cannot, as a matter of law, constitute intentional infliction of emotional distress in Texas. See Southwestern Bell Mobile Systems, Inc. v. Franco, 971 S.W.2d 52, 54 (Tex. 1998). Based on our review of the facts of the case outlined above, we conclude the trial court correctly granted Cancer Specialists's motion for summary judgment on this cause of action. Appellants' fourth issue is overruled.

Because the first four issues are dispositive, we find it unnecessary to address appellants' remaining issue. See Tex. R. App. P. 47.1.

Accordingly, we affirm the trial court's judgment on Godoy's and Perez's intentional infliction of emotional distress claims, and reverse and remand the judgment of the trial court on Godoy's quid pro quo sexual harassment claim and Perez's retaliation claim.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3

Opinion delivered and filed

this 26th day of April, 2001.

1. Senior Justice Robert J. Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. Cancer Specialists is a professional health care organization consisting of five oncologists who provide treatment for cancer patients through the use of chemotherapy and radiation therapy.

3. Specifically, Godoy testified by deposition that Smith called her his "sunshine," asked her out for drinks, invited her to his condominium, told her on Mondays that she had "missed out," rubbed or brushed against her front or shoulder area on three occasions, looked at her breasts when speaking with her, and stated "hmmm, sorry I missed that" when they discussed her wearing a T-shirt.

4. Specifically, Perez complained of the following: (1) when Smith was in the office with several individuals and his pants were unzipped; and (2) when she heard Smith tell a female employee Perez's shirt had a pretty bow on the back and he would like to untie it.

5. Specifically, Perez testified in her deposition that after her complaint, Smith "did not come around the station like he used to," yelled at her once for being away from her work station, promoted another medical assistant to the position of Lead Medical Assistant, and evaluated her unfairly.

6. Perez identifies the following as retaliation: (1) another medical assistant was given several days off, instead of Perez, and (2) the doctors talked to her, but only about job-related issues.

7. Compare Pfau v. Reed, 167 F.3d 228, 229 (5th Cir. 1999) (citing Pfau v. Reed, 125 F.3d 927, 932-34 (5th Cir. 1997) (affirmed dismissal of intentional infliction of emotional distress claim on basis of preemption when claim was filed with Title VII claim and was based on same facts)) with Perez v. Living Centers-Devcon, Inc., 963 S.W.2d 870, 875 (Tex. App.--San Antonio 1998, writ denied) (appellant's failure to file complaint with TCHR does not preclude her from pursuing common law causes of action arising from same facts as previous sexual harassment claim).