Kalina et al v. Brazoria County, Texas et al
Filing
55
MEMORANDUM AND OPINION. GRANTING in part and DENYING in part 47 Motion for JNOV and 49 First Amended Motion for JNOV. (Signed by Judge Kenneth M. Hoyt) Parties notified.(dwilkerson, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MIKKI KALINA, et al,
Plaintiffs,
VS.
JAMES A. BLACKSTOCK, Individually,
Defendant.
§
§
§
§
§
§
§
§
CIVIL ACTION NO. G-10-96
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
Before the Court is the defendant, James Blackstock’s amended motion for judgment
notwithstanding the verdict (“JNOV”) (Document No. 49); and (the defendant filed his original
JNOV on July 25 as Document No. 47) and the plaintiffs’ response (Document No. 51). The
Court has reviewed the motion, the response and transcript and, being fully advised on the law, is
of the opinion that the amended motion should be denied in part and granted in part.
II.
PROCEDURAL AND FACTUAL BACKGROUND
The plaintiffs brought this suit against the defendant on claims that he violated their civil
rights, and in particular the right to be free from sexual harassment and a hostile work
environment, pursuant to 42 U.S.C. § 1983. Without restating the facts as pled and presented to
the jury, suffice it to say that the plaintiffs contended and presented testimony that the defendant
sexually harassed them by touching and/or fondling them, thereby violating their bodily
integrity. The plaintiffs also pled a claim for intentional infliction of emotional distress and
sought both compensatory and punitive damages.
A jury was empaneled and testimony and exhibits were presented to the jury over 5 days.
On July 15, 2011, the jury returned its unanimous verdict on behalf of the plaintiffs, finding as
follows to the Interrogatories presented:
INTERROGATORIES
Do you find from a preponderance of the evidence that:
INTERROGATORY NUMBER 1:
(1)
James Blackstock subjected the plaintiff to a hostile work environment?
Each plaintiff has the burden of proof on her individual claim by a preponderance of the
evidence.
Answer “Yes” or “No” as to each plaintiff.
a.
b.
c.
Mikki Kalina
Estella “Christy” Strawn
Rebecca “Becky” Sirmans
Yes
Yes
Yes
INTERROGATORY NUMBER 2:
(2)
James Blackstock violated the bodily integrity of the plaintiff?
Each plaintiff has the burden of proof on her individual claim by a preponderance of the
evidence.
Answer “Yes” or “No” as to each plaintiff:
a.
Mikki Kalina
b.
Estella “Christy” Strawn
c.
Rebecca “Becky” Sirmans
INTERROGATORY NUMBER 3:
(3)
Yes
Yes
Yes
James Blackstock intentionally inflicted emotional distress upon the plaintiff?
Each plaintiff has the burden of proof on her individual claim by a preponderance of the
evidence.
Answer “Yes” or “No” as to each plaintiff:
a.
b.
c.
Mikki Kalina
Estella “Christy” Strawn
Rebecca “Becky” Sirmans
Yes
Yes
Yes
2
Only if you have answered Interrogatory Number 1, 2, or 3 “Yes” as to one or more of the
plaintiffs, then answer Interrogatory Number 4.
INTERROGATORY NUMBER 4:
(4)
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
the plaintiff for her compensatory damages, if any, that resulted from the sexual
harassment, violation of bodily integrity, and/or the intentional infliction of emotional
distress?
Answer in dollars and cents as to each plaintiff:
a.
b.
c.
Mikki Kalina
Estella “Christy” Strawn
Rebecca “Becky” Sirmans
$50,000
$100,000
$50,000
INTERROGATORY NUMBER 5:
(5)
Did James Blackstock act intentionally, with callous indifference, or with reckless
disregard when harassing and/or violating the bodily integrity of the plaintiff?
Each plaintiff has the burden of proof on her individual claim by a preponderance of the
evidence.
Answer “Yes” or “No” as to each plaintiff:
a.
b.
c.
Mikki Kalina
Estella “Christy” Strawn
Rebecca “Becky” Sirmans
Yes
Yes
Yes
Only if you have answered Interrogatory Number 5 “Yes” as to one or more of the plaintiffs,
then answer Interrogatory Number 6.
INTERROGATORY NUMBER 6:
(6)
What sum of money, if any, do you award the plaintiff as punitive damages?
Answer as to each plaintiff:
a.
b.
c.
Mikki Kalina
Estella “Christy” Strawn
Rebecca “Becky” Sirmans
$1,000,000
$1,000,000
$1,000,000
3
We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return our unanimous verdict into the Court.
_______________/s/_______________
Jury Foreperson
July 15, 2011
III.
CONTENTIONS OF THE PARTIES
A.
The Defendant’s Contentions
The defendant asserts that his motion for JNOV should be granted on the basis that: (a)
the plaintiffs’ claims of sexual harassment and hostile work environment should be dismissed on
the basis of insufficient evidence; (b) the plaintiffs’ pleadings and the evidence fail to support a
claim or submission for bodily integrity under the Fourteenth Amendment; (c) the Court lacks
jurisdiction over the plaintiffs’ sexual harassment and bodily integrity claims because they are
barred by the two-year statute of limitations; (d) the plaintiffs’ intentional infliction of emotional
distress claims are not supported by sufficient evidence, nor can these claims be charged under
Texas law in the employment context; (e) state law prohibits any recovery by the plaintiffs
against Brazoria County because the plaintiffs’ suit was dismissed with prejudice pursuant to a
stipulation between the parties. As well, the defendant argues this stipulation also bars any
recovery by the plaintiffs against him individually; and (f) because the plaintiffs’ claims for
punitive damages arise out of their bodily integrity claims, the award should be disregarded.
B.
The Plaintiffs’ Responsive Contentions
The plaintiffs contend that: (a) the defendant failed to move for a directed verdict on all
the grounds that he now seeks a JNOV, and so the post-verdict review should be based on plain
error; (b) the defendant is being sued individually for sexual harassment and violation of the
plaintiffs’ bodily integrity, such that suit is appropriate under Section 1983, rather than Title
4
VII; (c) the statute of limitations is an affirmative defense that the defendant never pled; (d)
federal law permits the plaintiffs’ claims for intentional infliction of emotional distress against
the defendant individually, and, state law does not bar these claims; and (e) the plaintiffs’
punitive damages question was properly submitted to the jury.
IV.
STANDARD OF REVIEW
This case was presented to a jury, which had the responsibility to discern the evidence by
weighing conflicting evidence and inferences and determining the credibility of the witnesses.
See Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc), (overruled on other
grounds). Hence, a jury verdict is entitled to great deference and should be set aside only where
the facts and any reasonable inferences instruct overwhelmingly that a reasonable jury could not
have arrived at the verdict rendered. Boeing Co., 411 F.2d at 374-75; Scottish Heritable Trust,
PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996). Federal Rule of Civil
Procedure, Rule 50(b) instructs that “a motion for judgment notwithstanding the verdict will not
lie unless it was preceded by a motion for a directed verdict made at the close of all the
evidence.” Therefore, in the instance where a directed verdict was not properly lodged, a court’s
post-verdict review is limited to a plain error. See Bay Colony, Ltd. v. Trendmaker, Inc., 121
F.3d 998, 1003 (5th Cir. 1997).
V.
ANALYSIS AND DISCUSSION
An analysis of the defendant’s stated contentions, for setting aside the jury verdict, lends
itself to the defendant’s global arguments that: (a) the evidence fails to support the plaintiffs’
claims (sufficiency of the evidence); and (b) state and federal law do not support the plaintiffs’
claims under the circumstances. The Court will address the defendant’s contentions under these
two broad categories.
5
A.
Sufficiency of the Evidence (Sexual Harassment)
The defendant asserts that the evidence fails to support the plaintiffs’ claim for sexual
harassment under Title VII. To establish this claim, the evidence must establish that: (a) the
plaintiff belongs to a protected class; (b) she was subjected to unwelcomed sexual harassment;
(c) the harassment was based on their sex or gender; (d) the harassment affected a term,
condition or privilege of employment; and (e) the employer knew or should have known of the
harassment and failed to take remedial action. See Green v. Adm’rs of Tulane Educ. Fund, 284
F.3d 642, 655 (5th Cir. 2002). However, where the evidence shows that the defendant was a
supervisor of a plaintiff, having the authority to either terminate or cause the employee’s
termination, the employee need not establish that the employer knew or should have known of
the harassment and failed to correct it. See Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.
1999). A summary of the plaintiff’s testimony sheds light on the defendant’s insufficiency
claim.
Rebecca Sirmans testified that she had worked for Brazoria County for some 17 years
when, without warning or provocation, the defendant put his hand on her buttock. She entered
the elevator and as they were descending he stroked her with several of his fingers. She asked
him to stop “playing” with her, and he remarked “it was sticking out and got in [his] way.”
Earlier, he had sent Sirmans a pornographic image that she did not solicit. After these events, the
plaintiff avoided the defendant as much as she could and informed her immediate supervisor
about the events. However, no action was taken against the defendant.
Mikki Kalina testified that she had known the defendant her whole life. She worked on
his campaign, graduated from high school with his son and saw him occasionally at softball
games. On several occasions, he touched her breast when he grabbed her from behind as she
6
was leaving his office. On several occasions, he grabbed her buttock and slapped her buttock
with his hand. He made the remark “drop one out for me” and asked her what he needed to do to
get in her pants. It started in 2007, when he asked her for a hug. When she attempted to hug him
from the side, he “bear hugged” her. When she spoke to her immediate supervisor, she was
cautioned that she would be terminated. Eventually, she spoke to the District Attorney about the
matter.
Estella Strawn began working for Brazoria County in 1996. She interacted with the
defendant four to five times per month as a legal secretary for the Juvenile Probation
Department. The defendant first touched Strawn in 2005-06. On one occasion, he slapped and
squeezed her buttock in the courtroom in the presence of another probation officer. In March of
2007, he came from behind his bench and grabbed Strawn’s breast. She demanded that he stop
and reported the incident to her supervisor. Strawn changed her routine and would not go to the
defendant’s office without another person accompanying her.
Nevertheless, he continued,
however, to request hugs, which were refused. The plaintiff talked with a female colleague of
the defendant, Judge Mills, about the situation. She was advised by Judge Mills that others had
complained and had been fired or let go.
In the case at bar, the evidence shows that the defendant, in his capacities as Chair of the
Juvenile Board and as a state judge, interacted with the plaintiffs on a regular basis as a
supervisor in either or both capacities. Starting in 2007, the defendant began engaging the
plaintiffs to give him hugs after meetings that he scheduled with them or that were necessary to
their job performance. These meetings were conducted in the privacy of the defendant’s office
and concerned either the business of the court and/or the business of the Juvenile Board.
7
The requests of the defendant progressed from a request to engage in a simple side hug to
frontal “bear”-like hugs. In his testimony, the defendant freely admits that he “popped” [with his
hand] one or more of the plaintiffs on the buttocks, and that he, on at least one occasion, sent a
pornographic email to at least one of the plaintiffs. When the plaintiffs requested that he cease
the conduct, he refused. The plaintiffs soon learned that they, as individuals, were not the only
employees subjected to this conduct. They took the matter to another judge, a female colleague
of the defendant, but to no immediate avail. Shortly thereafter, however, the District Attorney
was contacted and an investigation was commenced.
As a result of the investigation, the
defendant was charged with the offense of “official oppression by sexual harassment.” See Tex.
Penal Code Ann., Sec. 39.03(c) (Vernon Statutes). He entered a plea of “nolo contendere” to the
charge.
The Court is of the opinion that the evidence at trial was sufficient to overcome the
defendant’s insufficient evidence claims. Considering the totality of the evidence, the Court
opines that the facts and inferences to be drawn strongly support the plaintiffs’ claims and that a
reasonable jury would determine that the plaintiffs belonged to a protected class, that they were
subjected to unwelcomed sexual harassment, that the harassment was based on the plaintiffs’ sex
or gender, and that the defendant’s conduct affected a term, condition or privilege of their
employment. See Green, 284 F.3d at 655. Therefore, the defendant’s contention of insufficient
evidence is overruled.
B.
Sufficiency of the Evidence (Hostile Work Environment)
Next, the defendant argues that the evidence fails to establish that his conduct was
“severe or pervasive,” relying on Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th
8
Cir. 2005). Moreover, the evidence, argues the defendant, must be “subjectively and objectively
offensive,” citing Green v. Admin’rs of the Tulane Educ. Fund, 284 F.3d at 655.
In the Court’s view, severity reaches beyond how the victim felt. It considers the damage
done to the employment relationship. While the record does support the jury finding that the
plaintiffs were severely and emotionally harmed by the bold and rampant conduct of the
defendant, the evidence also shows that the plaintiffs could not function in their employment
capacities for fear of further unwanted touching and reprisal for not cooperating. The defendant
admitted that his conduct was not well received by all women. Hence, he admitted that he would
consider his own conduct offensive in certain circumstances.
The Court is of the opinion that the defendant’s request for a JNOV on the plaintiffs’
hostile work environment claim based on insufficient evidence should be overruled. Equally, the
Court’s conclusion and ruling is the same on the defendant’s contention that the plaintiffs failed
to establish the he violated their “bodily integrity” under Section 1983. The evidence is clear
that the plaintiffs were greeted with grabbing of their breasts, grabbing and stroking of their
buttocks, frontal “bear” hugs, kisses and the stroking of their bodies generally during hugs. This
conduct is considered violative of one’s bodily integrity. See Gonzalez v. Ysleta I.S.D., 996 F.2d
745, 750 (5th Cir. 1999). This contention is overruled. However, the Court is of the opinion that
the punitive damage is excessive. Therefore, it will be reduced to commensurate with the
pecuniary damage awards.
C.
The Defendant’s Statute of Limitations Claim
The evidence and pleadings show that the defendant failed to plead the affirmative
defense of a two-year statute of limitations. A Section 1983 cause of action does not present a
limitations issue, in and of itself. Therefore, a party may rely upon a state statute of limitations
9
as a defense to a claim or suit. See Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006). After
the trial began, it became clear that the defendant intended to present evidence in support of a
two (2) year statute of limitations. And, at the conclusion of the plaintiffs’ case, the defendant
asserted the limitations defense as a basis for a directed verdict. The Court denied the motion on
the basis that the defense had not been pled, and the defense had not been tried by consent. The
facts have not changed, and no excuse has been offered for the defendant’s failing. The Court
stands on its earlier ruling and, therefore, denies the defendant’s JNOV based on this contention.
D.
State Law Claims Against the Defendant Not Barred
The defendant asserts that the plaintiffs’ claim for intentional infliction of emotional
distress should fail because: (a) it is barred by state law; (b) a settlement was effected between
the plaintiffs and Brazoria County; and (c) there is insufficient evidence to support the verdict.
Addressing these in turn, the Court is of the opinion that Texas Civil Practices and Remedies
Code § 101.106 does not bar a suit against an official in his individual capacity. The law is clear
that the plaintiffs could not sustain a suit against Brazoria County, their employer, for intentional
infliction of emotional distress.
See Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011).
Likewise, the plaintiffs could not sustain a Title VII suit against the defendant, as their employer.
However, every person is responsible for his individual torts unless they are covered by state
law. See Tex. Civ. Prac. & Rem. Code § 101.106. Here, the conduct was personal and beyond
the scope of the defendant’s official duties. Therefore, the defendant’s contention fails.
E.
Remaining Claims of Error
The defendant’s contention, that a settlement by the plaintiffs with their employer under
Title VII bars their Section 1983 and state law claims against the defendant, is without merit.
The two defendants, Brazoria County and Blackstock, engaged in separate and divisible conduct
10
against the plaintiffs. Hence, the single tort, single recovery theory does not apply. This
contention is also overruled.
Finally, the defendant contends that there is insufficient evidence to support the
plaintiffs’ state tort claim of intentional infliction of emotional distress. The Court agrees. In
order for the jury verdict on this claim to stand, the evidence must establish that an event or harm
occurred that exceeded [reached beyond] the harm caused by the allegation, sexual harassment,
that can be quantified. See Hoffman-LaRoche Inc. v. Zeltwanger¸144 S.W.3d 438, 441 (Tex.
2004). In the case at bar, the facts presented are classic and unique, to sexual harassment.
Hence, there is no evidence of aggravation that supports a separate independent tort. Therefore,
the Court sustains the defendant’s motion for JNOV on this contention.
The Court GRANTS the defendant’s motion for JNOV on the plaintiffs’ state law tort
claim and DENIES the motion on the remaining claims.
It is so ORDERED.
SIGNED at Houston, Texas this 16th day of September, 2011.
___________________________________
Kenneth M. Hoyt
United States District Judge
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?