Opinion
3:02-CV-2505-P.
June 3, 2004
ORDER
Now before the Court are Defendants' Motion for Summary Judgment and Defendants' Motion to Strike Expert Testimony, filed December 3, 2003. After careful consideration of the parties' briefing, the evidence, and the applicable law, the Court hereby GRANTS Defendants' Motion for Summary Judgment, and DENIES AS MOOT Defendants' Motion to Strike Expert Testimony.
Plaintiff filed her Responses to Defendants' Motions on December 23, 2003, and Defendants filed their Replies on January 7, 2004.
BACKGROUND
This lawsuit arises out of Plaintiff's allegation that one of her managers at The Old Navy, Nathan Brown, sexually assaulted her in the back office after the store closed on July 8, 2000. (Defs.' Mot. Summ. J. App. at 60-65.)
The Court recognizes that Defendants believe Plaintiff had consensual sex with Brown on July 8, 2000, and maintained a relationship with him for several months. (Defs.' Mot. Summ. J. at 7, n. 4.) However, since Defendants move for summary judgment, the Court must accept as true Plaintiff's version of the facts, which is set forth below. See Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456 (1992).
On August 30, 1999, The Old Navy hired Brown as a Merchandise Manager for the new store in Rockwall, Texas. Id. at 7, 183. As part of his training, The Old Navy placed him in its store in Mesquite, Texas. Id. at 183. On October 1, 1999, a Loss Prevention Manager reported to Employee Relations that three employees at the Mesquite store told him that Brown had communicated with them in an inappropriate way. (Pl.'s Resp. App. at Ex. E.) According to the Employee Relations Call Report ("Report"), a male employee complained that Brown asked him in front of female employees if he was "hitting it" with another female employee. Id. The Report also included other complaints by female employees due to Brown's comments regarding their appearance. Id. Specifically, Brown asked one female employee why she was wearing pants instead of shorts, commenting that he liked to see her half undressed. Id. On October 17, 1999, while the investigation was still pending, Brown completed his training and began working in the Rockwall store. (Defs.' Mot. Summ. J. at 5.) On October 21, 1999, Defendants issued Brown a written warning for initiating inappropriate conversations with at least two employees at the Mesquite store. (Defs.' Mot. Summ. J. App. at 9.)
Plaintiff began working at The Old Navy store in Rockwall on January 20, 2000 as a part-time sales associate. Id. at 15. Each night after the store closed, employees scheduled to close would clean the store, and then ask the manager to do a "walk-through" to ensure that all the closing duties were complete before they went home. Id. at 40. If the employees finished cleaning the store before the manager finished closing down the cashier's drawers, then the manager would ask one employee to stay with the manager until he or she was finished, while the other employees were permitted to leave. Id. at 38-39.
On the evening of July 8, 2000, Plaintiff was scheduled to close. Id. at 60. After she and the other employees finished cleaning the store, they asked Brown, the manager scheduled to close, if they could leave. Id. at 61. Since Brown was not finished with his closing duties, he asked if anyone wanted to stay. Id. No one volunteered, and Brown told Plaintiff she would have to stay. Id. Another employee, LeeAnn Thomas, offered to stay with Plaintiff, but Brown told her to go home. Id. Plaintiff and Brown went back to the office, where he sexually assaulted her. Id. at 63-65. After Brown finished sexually assaulting her, he told her not to tell anyone about it, and threatened to sexually assault her again or kill her if she did. Id. at 65.
In the weeks following the sexual assault, Brown continued to threaten her and stalk her. Brown called her daily, and would threaten Plaintiff if she did not call him daily. Id. at 78-79. One day while they were both working, Brown called her back to the office on his walkie talkie. Id. at 74. Once in the office, Brown forced Plaintiff to write him a note stating that she missed him and wanted to know when they "were going to kick it again." Id. at 74. On July 20, 2000, Defendants, unaware of the sexual assault on July 8, 2000, terminated Brown for inappropriate behavior with other employees. Id. at 175-183.
Even after his termination, Brown still continued to stalk and harass her. Id. at 77-82. Once, when Plaintiff told him she would not call him at the time he demanded, Brown came to the pool while she was working, grabbed her arm tightly, and threatened her if she ever failed to call him again. Id. at 145. The phone calls continued into November of 2000. Id. at 82. In February of 2001, Plaintiff told a manager about the sexual assault, who advised her to tell someone she trusted, her parents, and the police. Id. On February 22, 2001, Plaintiff told her best friend and her parents about the sexual assault, and the next day they went to the police. Id. at 16.
On July 3, 2002, Plaintiff filed this lawsuit against Defendants asserting the following causes of action: negligent retention, supervision, and investigation, fraud, assault, battery, false imprisonment, invasion of privacy, and negligent undertaking. (Pet. at 4-7.) Defendants move for summary judgment arguing that Plaintiff's negligence claims are barred by the Texas Worker's Compensation Act, and that they fail as a matter of law. Defendants also move to strike the expert testimony of Steven Millwee and Sue James.
DISCUSSION
I. Defendants' Motion for Summary Judgment.
A. Legal Standard.
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett., 477 U.S. 317, 323 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Id. at 323. However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Adminstracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1999); Nordar Holdings, Inc. v. Western Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
B. Texas Workers' Compensation Act.
Defendants first assert that Plaintiff's claims are barred by the Texas Workers' Compensation Act ("Act"). (Defs.' Mot. Summ. J. at 3.) Plaintiff argues that the Act does not shield Defendants from Plaintiff's negligence claims because the "personal animosity" exception excludes her from coverage under the Act. (Pl.'s Resp. at 2.)
"The Workers' Compensation Act provides the exclusive remedy for employees' injuries sustained in the course of their employment, at least if the injuries are compensable under the Act." Walls Regional Hosp. v. Bomar, 9 S.W.3d 805, 806 (Tex. 1999); see also Tex. Lab. Code Ann. § 408.001(a) (Vernon Supp. 1996). However, "some injuries are not compensable, among them one that `arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment' — the so-called `personal animosity' exception." Id. at 806-807; see also Tex. Lab. Code Ann. § 406.032(1)(c). "The purpose of the `personal animosity' exception is to exclude from coverage of the Act those injuries resulting from a dispute which has been transported into the place of employment from the injured employee's private or domestic life, at least where the animosity is not exacerbated by the employment." Walls Regional Hosp., 9 S.W.3d at 807.
"The mere fact that the injury is caused by a co-employee is not controlling of the question of whether the injury is compensable under the Texas Workers' Compensation Act." Shutters v. Domino's Pizza, Inc., 795 S.W.2d 800, 802 (Tex.App.-Tyler 1990, no writ). "Although one's employment may be the occasion for the wrongful act or may give a convenient opportunity for its execution, the general rule is that an injury does not arise out of one's employment if the assault is not connected with the employment, or is for reasons personal to the victim as well as the 485 S.W.2d 593, 595 (Tex.Civ.App.-El Paso 1972, no writ)).
At issue here is whether the sexual assault occurred in the course of Plaintiff's employment. In Texas, whether the employee's injuries occurred in the course of her employment is ordinarily a question of fact. Shutters, 795 S.W.2d at 802. In Nasser v. Security Ins. Co., 724 S.W.2d 17 (Tex. 1987), the Texas Supreme Court addressed the issue of whether a plaintiff's injury was sustained in the course of employment. There, the manager of a restaurant was stabbed by a customer's jealous ex-boyfriend, after he saw the manager talking to his ex-girlfriend. Id. at 18. In holding that there was some evidence to support the jury's finding that the manager was injured in the course of his employment, the Supreme Court of Texas explained:
It was part of [the manager's] job to talk to customers. As a result of his performance of this aspect of his job, he was stabbed by Daryoush. The dispute, if any, between [the manager] and Daryoush was not one that was transported from [the manager's] private life into the workplace. The dispute, if any, arose in the workplace or was exacerbated by, or in the very least, was incidental to, a duty of [the manager's] employment.Id. at 19.
Another Texas Supreme Court case addressing the issue of whether an injury occurred in the course of employment is Walls. 9 S.W.3d at 806. In Walls, the plaintiffs, nurses employed by a hospital, sued their employer for negligently allowing a physician to sexually harass them at work. Id. In finding that the plaintiffs' injuries occurred in the course of their employment, the Texas Supreme Court set forth the following reasoning:
[A]ll the incidents described in the summary judgment record occurred while plaintiffs were doing their jobs and [the physician] was doing his. Plaintiffs do not contend that [the physician] ever accosted them privately outside the Hospital, nor do they contend that he came to the Hospital because they were there. . . . Plaintiffs' problems with [the physician] were not "transported into the place of employment from [their] private or domestic [lives]"; rather, their problems occurred only at the Hospital.Id.
In Villanueva, a case factually similar to the instant case, the plaintiff sued her employer for negligence and gross negligence in the hiring, training, supervision, and control of its employees after she was sexually assaulted by a co-worker in her ticket booth shortly after she closed it. 866 S.W.2d at 692. In dismissing the employer's argument that the dispute arose in the workplace or was exacerbated by or incidental to a duty of the plaintiff's employment, the Court explained that the employer "fail[ed] to identify which duty of [the plaintiff's] employment required her to meet, become acquainted with, or be present in the same booth as [her co-worker.]" Id. at 695.
In contrast to Villanueva, a policy existed in the instant case which required an employee to stay with a manager after the store closed if the manager was not finished with his or her closing duties. On July 8, 2000, Brown asked Plaintiff to stay since he was not finished with his closing duties, and thus, the sexual assault occurred while both Plaintiff and Brown were in the course of their employment. Furthermore, the summary judgment record does not contain any evidence indicating that Brown sexually assaulted Plaintiff because of a dispute which was transported into their work at The Old Navy from Plaintiff's private life. Therefore, the Court finds that the "personal animosity" exception does not apply to this case, and Plaintiff's claims are barred by the Act.
C. Negligence.
Plaintiff claims that Defendants were negligent in supervising Brown and training his supervisors. (Pl.'s Resp. at 8.) "Under the tort of negligent hiring and supervision, an employer who negligently hires an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee's negligent or intentional act." Verinakis v. Medical Profiles, Inc., 987 S.W.2d 90, 97 (Tex.App.-Houston [14th Dist.] 1998, pet. denied.) Liability may be imposed where the employee commits the tort off-duty on the employer's premises. See Ianni v. Loram Maintenance of Way, Inc., 16 S.W.3d 508, 514 (Tex.App.-El Paso 2000, pet. denied).
Negligence consists of the following elements: 1) a legal duty; 2) breach of that duty; and 3) damages proximately resulting from the breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). "In a negligence case, the threshold inquiry is whether a duty exists as a matter of law." NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996). "The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question." Id.
While generally no duty exists to control the conduct of third persons, the special relationship of employer and employee gives rise to such a duty. Verinakis v. Medical Profiles, Inc., 987 S.W.2d 90, 97 (Tex.App.-Houston [14th Dist.] 1998, pet. denied.) "An employer has a duty to adequately hire, train, and supervise employees. The negligent performance of those duties may impose liability on an employer if the complainant's injuries result from the employer's failure to take reasonable precautions to protect the complainant from the misconduct of its employees." Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex.App.-Houston [1st Dist.] 1999, pet. denied); see also Guidry v. National Freight, 944 S.W.2d 807, 810 (Tex.App.-Austin 1997, no writ) (holding that "liability is imposed when the entity brings into contact or association with the vulnerable person an individual whom the entity knows or should know is particularly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.") "In the absence of foreseeability, there is no duty." NationsBank, N.A., 922 S.W.2d at 954. To establish foreseeability, Plaintiff must show that the sexual assault might reasonably have been anticipated, and that she, or one similarly situated, was a foreseeable victim. See Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999).
To establish foreseeability, Plaintiff offers the expert testimony of Steven Millwee. However, Millwee is not willing to opine that it was reasonably foreseeable that Brown would sexually assault Plaintiff.
It is my opinion that based upon what I have reviewed, that the defendants could or should have known that Mr. Brown's actions as a manager in his store would result in extremely inappropriate behavior which could include sexual assault. But if I may clarify a bit . . . it is not my opinion that the information which The Gap knew, could, or should have known in and of itself would be foreseeable of a rape. But more specifically, that it was foreseeable that he would engage in inappropriate sexual misconduct in a store.
(Defs.' Mot. to Strike App. at 57.) Within the first fifty-three days of employment and shortly after receiving sexual harassment training, Brown received a written warning from Defendants for making inappropriate comments to at least two employees. (Pl.'s Resp. App. at Ex. D, p. 25-27; Ex. F, p. 1.) Millwee argues that this blatant disregard of the employer's sexual harassment policy so soon after training indicated that Brown would continue to engage in sexual misconduct. Id. at Ex. D, p. 27. However, the Court finds that Defendants could not have reasonably anticipated that Brown would sexually assault Plaintiff simply because he made three inappropriate comments to other employees nine months prior to the assault. In the absence of any evidence demonstrating that it was reasonably foreseeable that Brown would sexually assault Plaintiff, she cannot raise a fact issue with respect to negligence.
II. Defendants' Motion to Strike Expert Testimony.
Since the Court has already found that no factual issue exists with respect to the merits of this case, the Court DENIES AS MOOT Defendants' Motion to Strike Expert Testimony.