Arredondo et al v. Estrada et al
Filing
85
ORDER granting in part and denying in part 57 Motion for Summary Judgment.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RICARDO ARREDONDO, et al,
Plaintiffs,
VS.
JOEY ESTRADA, et al,
Defendants.
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§ CIVIL ACTION NO. 2:14-CV-170
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ORDER GRANTING IN PART AND DENYING IN PART
WEATHERFORD’S MOTION FOR SUMMARY JUDGMENT
Plaintiffs, Ricardo Arredondo, Jr., Richard Rabino, and Mario Torrez, all former
employees of Weatherford International, LLC (Weatherford), filed suit for damages
arising out of abusive treatment by their supervisor, Joey Estrada (Estrada), that allegedly
affected their work environment, employment, and personal health. While there appears
to be no dispute that the abusive conduct took place, the question for the Court is whether
Plaintiffs’ specific causes of action are viable under all of the facts.
Reading Plaintiffs’ Amended Complaint liberally, their federal claims are based
on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (discrimination
based upon sex, sexual harassment, hostile work environment, and constructive
discharge) and § 2000e-3(a) (retaliation). Invoking the Court’s supplemental jurisdiction
over state law claims, Plaintiffs also complain of assault (and battery), intentional
infliction of emotional distress, and against Weatherford only:
supervision, training, and retention of Estrada. D.E. 27.
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negligent hiring,
Weatherford denies the claims and further defends on the basis of, among other
things, failure to exhaust administrative remedies, limitations, and Plaintiffs’ alleged
unreasonable failure to take steps pursuant to Weatherford policies to prevent and/or
correct any discrimination or harassment problem. D.E. 48. While not pled, Weatherford
also relies in its summary judgment motion on the defense that Plaintiffs’ state law claims
against Weatherford are preempted by the Texas Workers’ Compensation Act, Tex. Lab.
Code Ann. § 408.001(a). D.E. 57.
Before the Court is Weatherford’s Motion for Summary Judgment (D.E. 57, 58),
along with Plaintiffs’ Response (D.E. 75) and Weatherford’s Reply (D.E. 78).1 For the
reasons set out below, the motion is GRANTED IN PART and Plaintiffs’ Title VII
retaliation, intentional infliction of emotional distress, and negligent hiring, supervision,
training, and retention claims are dismissed. The motion is DENIED IN PART and
Plaintiffs’ Title VII sex discrimination and assault claims are ordered to proceed to trial.
DISCUSSION
A. The Abusive Conduct
Undisputed evidence shows that, during their employment with Weatherford,
Plaintiffs worked on a crew supervised by Estrada. Estrada, who was missing half of one
of his fingers, was known as “The Nub” or “Mr. Nub.”
He was well known for
threatening to “nub” the workers, meaning that he would punch them in the back, head,
or the arm, using his fist with the nub extended. D.E. 75-3, p. 28. This offensive
1
In a separate motion, Weatherford has asked that the Court issue sanctions against Plaintiffs, including precluding
them from using any testimony supplied by Estrada. The Court rules on that motion in a separate order. However,
the Court notes that the holdings reached herein are not dependent in any way upon Estrada’s testimony. Rather, the
same result obtains with or without consideration of that testimony.
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behavior also included putting his nub in other persons’ drinks and licking it and putting
it in their ears (a “wet willy”). If Estrada was not engaging in a “nubbing,” he was often
threatening Plaintiffs with “nubbings” and using demeaning vulgarities. In addition,
Estrada would grab the back pockets of employees’ coveralls and pull them toward his
front side in contact with his clothed genital area. D.E. 75-3, pp. 29-30.
This conduct crossed all boundaries on at least four occasions,2 each of which
involved one of the Plaintiffs and a similar modus operandi. Certain crew members
would capture the Plaintiff and restrain him by either holding his arms and legs or duct
taping him and then lay him out or bend him over so that Estrada could punch him in the
buttocks, with his nub extending between the buttocks into the anal region. Estrada
would do so, twisting his hand, and repeating several times.
While Plaintiffs were clothed in fire-retardant coveralls during these assaults,
some of those coveralls were made of lightweight knit, allowing painful penetration of
Estrada’s nub and causing significant chaffing. On the second Torrez incident, Estrada
opened up his own coveralls, either rubbed his nub or pretended to rub it against his own
genitals, and then had others pry open Torrez’s mouth so that Estrada could stick his hand
in Torrez’s mouth, in his nose, ears, and eyes and around Torrez’s face while Torrez was
duct-taped, immobilized, and incapable of defending against the attack. D.E. 75-2, p. 33;
D.E. 75-3, p. 43. Plaintiff Rabino captured a video of this incident on his phone.
2
Plaintiff Arredondo was assaulted on May 8, 2011. Plaintiff Rabino was assaulted on his birthday, January 19,
2012. And Plaintiff Torrez was assaulted twice: once in February of 2012 and again before a scheduled leave in
April of 2012.
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Estrada made these “nubbings” particularly demeaning, calling out “Come on,
bitch,” “Get loose, bitch,” “Who’s your daddy?” or “Do you want to be my bitch?” D.E.
75-1, p. 27, D.E. 75-2, p. 29, D.E. 75-3, p. 31. In later referring to the May 8, 2011
incident, the crew talked about how Arredondo had been “finger fucked.” D.E. 75-3, p.
31. Plaintiff Torrez testified that it went straight to his ego, his pride, “I mean, it don’t
make you feel like anymore of a man.” D.E. 75-2, p. 30.
The incident with Arredondo occurred after the crew had completed its shift and
had gone to their hotel where they were barbecuing and drinking beer together. Both of
the incidents involving Plaintiff Torrez took place on a Weatherford job site. D.E. 75-2,
p. 29, 34. The incident with Plaintiff Rabino took place on a job site during a shift
change. D.E. 75-3, p. 36. Weatherford employees in supervisory positions, who had
witnessed or knew of these “nubbings” and Estrada’s continual threats to repeat them,
laughed about it, dismissing it as “that’s just Joey.” D.E. 75-2, pp. 29, 31, 33; 75-3, pp.
29, 34, 36, 73.
Estrada routinely threatened Plaintiffs with this behavior, saying things like, “You
want the nub, bitch?” D.E. 75-2, p. 27. Yet nothing was done to stop him. Plaintiffs
testified that the company culture was such that they were expected to endure any
treatment doled out by supervisors—that they were to “get along to go along.” While
Weatherford had policies that appeared to disapprove of such behavior, a Human
Resources chain of command for complaints and an anonymous tip line, Plaintiffs
testified that they feared making a formal complaint because it would inevitably lead to
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retaliation that threatened their jobs and personal safety. Thus Plaintiffs did not assert
any complaint other than informal conversation with other supervisor witnesses.
When another person, apparently motivated by the second Torrez incident, called
in an (initially) anonymous complaint, Weatherford’s HR representative investigated,
learned that the allegations were true, and terminated Estrada and either terminated or
disciplined other employees who had participated in capturing and restraining Plaintiffs.
By that time, Plaintiff Arredondo had already left Weatherford’s employ following an
unrelated incident with a different supervisor. Torrez, who had already planned a twoweek vacation to travel to Michigan to visit his family, decided to remain in Michigan.
Only Plaintiff Rabino remained as an active employee when the investigation was
initiated and became common knowledge.
He testified that he was immediately
subjected to threats as the presumed tattler. Rabino was afraid to return to his work crew
and Weatherford put him on paid suspension, telling others that it was unpaid suspension
in an effort to protect him from retaliation. Plaintiff Rabino found other employment and
never returned to the Weatherford job site.
B. Jurisdiction and Exhaustion of Administrative Remedies
While Plaintiffs have sued under Title VII of the Civil Rights Act of 1964 (thus
securing federal question jurisdiction under 28 U.S.C. § 1331), such claims may be
adjudicated only if Plaintiffs have exhausted their administrative remedies in a timely
manner. 42 U.S.C. § 2000e-5(e)(1); Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir.
2006). This is a jurisdictional requirement. Nat’l Ass’n of Gov’t Employees. v. City
Public Service Bd., 40 F.3d 698, 711 (5th Cir. 1994).
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To assert a Title VII claim, a plaintiff must first file a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC) within, at most, 300 days
of the asserted violation. 42 U.S.C. § 2000e-5(e)(1); EEOC v. WC&M Enterprises, Inc.,
496 F.3d 393, 398 (5th Cir. 2007). Plaintiffs Rabino and Torrez filed such claims for
discrimination based upon sex, but did not assert retaliation claims and more than 300
days have passed since their employment with Weatherford was terminated in April
2012. D.E. 57-15 (Rabino), 57-16 (Torrez). While Arredondo had originally included a
claim for retaliation with his sex discrimination claim, that claim was withdrawn and the
deadline has now passed. D.E. 57-13, 57-14. Therefore, none of the Plaintiffs may
maintain a claim based upon retaliation in this Court. The Court GRANTS IN PART the
motion for summary judgment and DISMISSES all claims for retaliation.
With respect to their claims for discrimination based upon sex, both Torrez and
Rabino filed their EEOC complaints within 300 days of the physically-restrained anal
“nubbings” practiced upon them. Their claims cannot be dismissed on the basis of
limitations.
Plaintiff Arredondo’s such “nubbing” occurred outside the 300 day limitations
period.
For Plaintiff Arredondo to survive the limitations bar, he has invoked the
“continuing violation” theory. According to that theory, where there is a series of related
acts, one or more of which falls within the limitations period, the plaintiff’s claim is not
barred. Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997). The idea is that equity
affords a plaintiff time “until facts supportive of a Title VII charge or civil rights action
are or should be apparent to a reasonably prudent person similarly situated. The focus is
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on what event, in fairness and logic, should have alerted the average lay person to act to
protect his rights.” Id. (citing Glass v. Petro–Tex Chem. Corp., 757 F.2d 1554, 1560–61
(5th Cir. 1985)).
This Court cannot say, as a matter of law, that the May 8, 2011 “nubbing” that
Plaintiff Arredondo endured necessarily made it apparent that the act was one of sex
discrimination rather than simply an assault. Clues to the sex discrimination claim arise
out of knowing who the victims were and piecing together why those individuals were
targeted. For a plaintiff, it is a matter of identifying a persisting and continuing system of
discriminatory practices that may not manifest themselves as individually discriminatory
except in accumulation over a period of time. Id. (quoting Glass, supra).
Neither can this Court say, as a matter of law, that the discriminatory nature of the
practice was apparent to Plaintiff Arredondo only at some time within the 300-day
limitations period. Plaintiffs have alleged a hostile work environment with instances of
constant related harassment throughout their employment with Weatherford. According
to undisputed evidence, “nubbings” to various body parts and threats of “nubbings” and
related conduct were a constant at the Weatherford work site. It is a question for the jury
to determine when, in fairness and in logic, Arredondo should have seen the harassment
he endured as a pattern of discrimination. The Court DENIES IN PART the motion for
summary judgment regarding any limitations bar against the consideration of sex
discrimination claims under Title VII.
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C. Title VII Discrimination Based Upon Sex
Plaintiffs’ complaint asserts discrimination based on sex in the context of a hostile
work environment involving sexual harassment. To prevail on such a Title VII claim,
Plaintiffs must show: (1) they belong to a protected class; (2) they were subject to
unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected
a “term, condition, or privilege” of employment; and (5) their employer knew or should
have known of the harassment and failed to take prompt remedial action or the
harassment was perpetrated by a supervising employee. Lauderdale v. Tex. Dept. of
Criminal Justice, 512 F.3d 157, 162-63 (5th Cir. 2007); Harvill v. Westward
Communications, LLC, 433 F.3d 428, 434 (5th Cir. 2005). Weatherford argues that
Plaintiffs’ sex discrimination claims must be dismissed because Plaintiffs cannot
establish the third or fourth element.
1. Discriminatory Conduct
To prevail on a Title VII claim for sexual harassment, Plaintiffs must show that
they were harassed because they were male (“because-of-sex”). Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998); Price Waterhouse v. Hopkins, 490 U.S. 228
(1989); EEOC v. Boh Bros. Const. Co., 731 F.3d 444, 453 (5th Cir. 2013) (en banc).
Estrada is male, all of the victims are male, and the entire workforce is populated solely
by men. At issue, therefore, is same-sex harassment in a non-diverse workplace.
There are three generally accepted evidentiary paths for showing that same-sex
harassment is discriminatory: (1) the harasser is homosexual and allegedly motivated by
sexual interest; (2) the victim’s harassment shows that the harasser is generally hostile
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toward employees of the same sex; or (3) the harasser treats members of the different
sexes in a disparate manner in a mixed-sex workplace. Oncale, 523 U.S. at 80-81.
Applying those analyses, there is no evidence that Estrada is homosexual or motivated by
sexual interest. There is no evidence that Estrada is hostile toward men, generally, as
opposed to women. And this workplace is not a mixed-sex workplace such that Plaintiffs
can show that Estrada treated women differently.
Plaintiffs argue, correctly, that the Oncale trio of same-sex harassment scenarios is
not exclusive and they are entitled to advance alternative theories by which Estrada’s
admittedly sexual, vulgar, abusive, and even assaultive acts are discriminatory. See Boh
Bros., 731 F.3d at 455-56. Without actually articulating any such alternative theory, they
rely on the extreme sexual nature of the conduct and suggest that it is analogous to the
gender stereotyping fact scenario approved by the en banc court in Boh Brothers.
Additionally, they rely on the deposition testimony of Rudy Espinoza, a Weatherford
supervisor, in which he agreed that the most egregious of Estrada’s conduct was sexual
harassment as opposed to hazing. D.E. 75-10, pp. 13-14.
Viewing the evidence in favor of the non-movant as required by Federal Rule of
Civil Procedure 56, Plaintiffs’ deposition testimony paints a picture of Estrada and other
employees targeting them as weaker crew members and using male domination
techniques to have Plaintiffs perceived as less manly and thus less worthy as crew
members. They did this by referring to them as “bitches,” restraining them in passive
sexual positions, and Estrada placing his nub in or near their orifices in a symbolically
phallic manner that Plaintiffs found humiliating and threatening to their masculinity.
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Estrada may not have expressly labeled Plaintiffs as effeminate as occurred in Boh
Brothers, but a jury could reasonably find that Estrada’s behavior implied that Plaintiffs
were “lesser men” and that Estrada viewed them this way.
Vulgar words, physical acts with sexual connotations, horseplay, and “locker
room” behavior with explicit sexual components do not necessarily state a Title VII
gender discrimination claim. Oncale, 523 U.S. at 80; Boh Bros., 731 F.3d at 454. More
commonly, sexual harassment involves humiliation related to sexual desire. LaDay v.
Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002). However, humiliation based on
gender stereotyping meant to separate those who are deemed less manly from the rest of a
crew is actionable. Boh Bros., supra.
2. Severe and Pervasive Conduct Affecting Employment
To affect a term, condition or privilege of employment, the harassing conduct
must be “sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Aryian v. Wal-Mart Stores
Texas LP, 534 F.3d 473, 479 (5th Cir. 2008). The complained-of environment must be
“both objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so.” Butler v. Ysleta
Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998).
These are fact-intensive issues. See, Indest v. Freeman Decorating, Inc., 164 F.3d
258, 263-64 (5th Cir. 1999).
Weatherford contends that the “nubbings” were four
isolated instances. While only four physically-restrained anal “nubbings” occurred with
Plaintiffs as victims, there was testimony regarding a fifth and they occurred within a
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single year’s time.
Plaintiff Torrez was subjected to physically-restrained anal
“nubbings” twice, only two months apart in the course of less than four months on the job
with Weatherford.
Furthermore, in between these physically-restrained “nubbings,” Estrada voiced
credible threats of additional anal “nubbings” and harassed Plaintiffs with “nubbings” to
their backs, heads, ears, and other body parts on a fairly constant basis. Plaintiffs have
certainly submitted sufficient evidence to raise a disputed issue of material fact on the
severity and pervasiveness of Estrada’s conduct and its effect on their employment.
3. Weatherford’s Ellerth/Faragher Affirmative Defense
Weatherford seeks to defeat liability by claiming that (1) Plaintiffs did not suffer
any tangible employment actions and (2) it has established an Ellerth/Faragher defense.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775, 778 (1998). Assuming without deciding that Weatherford is correct
on the premise that Plaintiffs did not suffer tangible employment actions, the record is
sufficient to raise a disputed issue of material fact on its Ellerth/Faragher defense.
The first prong of the defense is whether Weatherford took reasonable care to
prevent and correct harassment. The second prong is whether Plaintiffs unreasonably
failed to avail themselves of Weatherford’s anti-harassment procedures. Ellerth, supra;
Faragher, supra. The question of what was “reasonable” under the circumstances does
not require looking at the actions of the respective parties in a vacuum. To be reasonable,
employer policies must reach the needs of the employees. Faragher, 524 U.S. at 778
(stating that the policy must be “suitable to the employment circumstances”). Certainly,
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to be unreasonable, employees must forego available remedies that do not risk bodily
harm or loss of employment. Here, there is evidence of a compromised corporate culture.
It is true that Weatherford had anti-discrimination and anti-harassment policies in
effect and upon receiving a report of the second Torrez incident (the first report made of
any such incident), Weatherford investigated it promptly and terminated or disciplined
the worst offenders. See Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 971 (5th
Cir. 1999) (approving the employer’s Ellerth/Faragher defense when it had an adequate
policy in place and, upon notice of the charge, vigorously investigated it). However,
there is evidence that supervisors ruled their crews with iron fists. According to the
Plaintiffs, the spoken or unspoken messages that permeated the workplace, included that
they had to “get along to go along” and “what happens here stays here.” They quickly
learned that supervisors were not to be questioned and that doing so would not end well
for them.
And those supervisors who were aware of Estrada’s conduct were not
interested in stopping it.
Based upon the working environment, Plaintiffs feared
retaliation if they were to take advantage of any complaint procedure that went over the
head of any immediate supervisor.
It is for a jury to decide if Weatherford knew or should have known of the
intimidation of the crews and whether the complaint procedures were reasonable under
those circumstances. It is for a jury to decide whether Plaintiffs were unreasonable in not
invoking the complaint procedures in an attempt to stop Estrada’s behavior, given the
corporate culture.
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4. Constructive Discharge
Plaintiffs have included claims for constructive discharge, which requires showing
that work conditions were so intolerable that a reasonable person would feel compelled to
resign. Pennsylvania State Police v. Suders, 542 U.S. 129, 139 (2004). The severity of
harassment must exceed the minimum required for a sexual harassment claim—have
some aggravating circumstances—to justify constructive discharge. Landgraf v. USI
Film Products, 968 F.2d 427, 430 (5th Cir. 1992).
While Weatherford contends that Plaintiffs all voluntarily terminated their
employment for reasons other than the harassment, neither resignation nor additional
reasons necessarily preclude an action for constructive discharge. In fact, “constructive”
discharge presumes a voluntary resignation. See Id. at 429. And Weatherford provides
no authority that the harassment Plaintiffs experienced has to be the sole reason for their
resignation.
See generally, Project Aid, 240 NLRB 743, 750 (1979) (evaluating a
constructive discharge claim and referencing the “dominant reason” for resignation). The
severity of the harassment and the reasons for, and reasonableness of, Plaintiffs’ refusal
to continue working at Weatherford are disputed issues of material fact for the jury.
5. Conclusion
Conduct is not actionable solely because it is “tinged with offensive sexual
connotations.” Oncale 523 U.S. at 80. And Title VII is not to be used as a “civility
code” for the workplace. Id. at 81-82. But extreme and outrageous conduct that demeans
a worker on a gender basis, including gender stereotyping, fully supports the use of Title
VII to redress discrimination. The evidence of abuse occurring in the Weatherford
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workplace on a regular basis with constant threats of same is sufficient to trigger Title
VII remedies and issues for a jury. Thus the Court DENIES IN PART the motion for
summary judgment on the Title VII claims for discrimination based on sex, including
theories of sexual harassment, hostile work environment, and constructive discharge
because there are disputed issues of material fact. The Court further DENIES IN PART
the motion on the issue of the Ellerth/Faragher affirmative defense because it, also,
involves disputed issues of material fact for the jury.
D. Assault
The summary judgment motion is brought only on behalf of Weatherford. And
Weatherford does not dispute that Estrada engaged in offensive conduct, including
“nubbing” Plaintiffs and threatening to “nub” Plaintiffs.
There is no question that
Estrada’s conduct can be found to be assault (and battery),3 defined as when a person (1)
intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally
or knowingly threatens another with imminent bodily injury; or (3) intentionally or
knowingly causes physical contact with another when that person knows or should
reasonably believe that the other will regard the contact as offensive or provocative. Tex.
Pen. Code § 22.01(a). Thus the question before the Court is whether Weatherford is
subject to liability for Estrada’s intentional, assaultive conduct.
Weatherford challenges Plaintiffs’ assault claim solely on the basis of “course and
scope.” An employer may be liable for an employee’s intentional tort when the tortious
act is within the course and scope of the employee’s general authority in furtherance of
3
The definition of “assault” in the Texas Penal Code includes conduct previously denominated “battery.”
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the employer’s business and for the accomplishment of the object for which the employee
was hired. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). “If
the purpose of serving the master’s business actuates the servant to any appreciable
extent his acts are within the scope of his employment.” Howard v. Am. Paper Stock Co.,
523 S.W.2d 744, 747 (Tex. Civ. App.—Fort Worth 1975), reformed and aff’d, 528
S.W.2d 576 (Tex. 1975) (per curiam).
There is some evidence that, when Estrada made his threats against Plaintiffs, he
did so in order to get them to work—as a motivational tool to accomplish something that
he needed them to do on the jobsite. See, Bodin v. Vagshenian, 462 F.3d 481, 484-85
(5th Cir. 2006).
While that summary judgment evidence is not particularly strong,
“course and scope” is not the only means for holding Weatherford liable for Estrada’s
assault.
Plaintiffs’ pleading is broad enough to support the theory of employer ratification
as well:
• “While Plaintiffs were employed with Weatherford, they were each
subjected to disgusting, perverse and outrageous conduct by several
Weatherford supervisors and other employees.” D.E. 27, p. 3.
• “Despite Weatherford’s knowledge of these working conditions, it took
no action to protect Plaintiffs, and allowed Estrada to openly continue
his repeated assaults, intimidation, and threats on Plaintiffs and others.”
Id. at 4.
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A principal can be held vicariously liable for the acts of its agent, even if outside the
scope of his authority, if the principal adopts or confirms those acts. See generally,
Facciolla v. Linbeck Constr. Corp., 968 S.W.2d 435, 440 (Tex. App.—Texarkana 1998,
no pet.); Hays v. Marble, 213 S.W.2d 329, 333 (Tex. App.—Amarillo 1948, writ dism’d)
(citing City of Laredo v. MacDonnell, 52 Tex. 511, 529 (1880)). Weatherford does not
address this theory.
After review of the record evidence, the Court concludes that Plaintiffs have pled
and raised a disputed issue of material fact whether Estrada’s conduct constituting alleged
assault was perpetrated for the purpose of directing his crew or was ratified by
Weatherford through its supervisors who had knowledge and failed to stop the conduct.
Therefore, the Court DENIES IN PART the motion for summary judgment with respect
to Weatherford’s argument that it is not liable for Estrada’s assaults as a matter of law.
E. Intentional Infliction of Emotional Distress
Plaintiffs’ allegations also state predicate conduct for intentional infliction of
emotional distress (IIED): intentional or reckless conduct that is extreme and outrageous,
capable of causing severe emotional distress. See generally, Kroger Tex. L.P. v. Suberu,
216 S.W.3d 788, 796 (Tex. 2006). However, as Weatherford has pointed out, a plaintiff
is not entitled to bring an IIED claim if an alternative cause of action would provide a
remedy for the severe emotional distress caused by the defendant’s conduct. HoffmannLa Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). Because the Court has
held that Plaintiffs have other viable causes of action for the injury caused by Estrada’s
extreme and outrageous conduct, the Court GRANTS IN PART the motion for summary
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judgment and DISMISSES the Plaintiffs’ claims for intentional infliction of emotional
distress.
F. Negligent Hiring, Supervision, Training, and Retention of Estrada
Plaintiffs have asserted negligence claims against Weatherford for hiring, failure
to supervise, failure to train, and retention of, Estrada. The success of these theories does
not depend upon finding that Estrada’s conduct was gender-based or discriminatory.
They depend upon finding that Estrada’s conduct was tortious and that Weatherford was
negligent in giving him power to act.
Weatherford seeks to defeat this claim by
application of the Texas Workers Compensation Act’s exclusive remedy bar of
negligence claims against a subscribing employer. Tex. Labor Code § 408.001(a). Its
motion includes evidence that Weatherford is a workers compensation subscriber. E.g.,
D.E. 57-1.
The courts in GTE Southwest, Inc. v. Bruce, 956 S.W.2d 636, 638 (Tex. App.
1997), aff'd, 998 S.W.2d 605 (Tex. 1999), explained that the workers’ compensation bar
does not apply to claims based upon a supervisor’s intentional acts.
However, the
liability must be direct, such as that based on assault and discussed above—liability
through “course and scope” or ratification.4 Bruce, 998 S.W.2d at 618. Plaintiffs have
not demonstrated that the claims for negligence regarding the decision to employ Estrada,
for instance, were intentional acts of Weatherford in order to be included as an exception
to the statute. Thus the exclusive remedy bar applies to the negligent hiring, supervision,
training, and retention claims.
4
For that reason, Plaintiffs’ assault claim is not included in the workers compensation bar.
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Plaintiffs oppose the application of the workers compensation bar because it is an
affirmative defense that Weatherford failed to plead. They suggest that they should be
given time to conduct discovery on this issue before the Court applies the bar. Plaintiffs
do not articulate what discovery they believe needs to be conducted. Neither do Plaintiffs
demonstrate any prejudicial surprise. The only issue is whether Weatherford is a workers
compensation subscriber and evidence to that effect has been submitted. Under such
circumstances, the failure to plead the defense does not preclude its application. Pasco ex
rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) (technical failure to comply
with Rule 8(c) is not fatal in the absence of evidence of surprise or prejudice or if the
defense is raised at a “pragmatically sufficient time”).
For these reasons, the Court GRANTS IN PART the motion for summary
judgment and DISMISSES Plaintiffs’ claims for negligent hiring, supervision, training,
and retention.
The Court does not reach Weatherford’s alternative argument that
Plaintiffs have failed to supply evidence on the merits of those claims.
CONCLUSION
For the reasons set out above, the Court GRANTS IN PART and DENIES IN
PART Weatherford’s Motion for Summary Judgment (D.E. 57). The Court DISMISSES
Plaintiffs’ claims against Weatherford for Title VII retaliation, intentional infliction of
emotional distress, and negligent hiring, supervision, training, and retention. Plaintiffs’
claims against Weatherford for Title VII discrimination based on sex, sexual harassment,
hostile work environment, and constructive discharge, along with assault (and battery)
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are ORDERED to proceed to trial. Plaintiffs’ claims against Estrada are unaffected by
this Order.
ORDERED this 27th day of July, 2015.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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