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finding that appellant waived its argument that the appellee's calculation of attorney's fees was not reasonable by failing to object to the calculation when it was explained at trial
Summary of this case from Dias v. DiasOpinion
No. 10-01-058-CV
Opinion delivered and filed December 10, 2003.
Appeal From the 87th District Court Freestone County, Texas, Trial Court # 99-064-B.
Affirmed.
John Cornyn and Adrian L. Young, Attorney for Appellant.
R. John Cullar and Amy Grubbs Thomas, Attorney for Appellee.
MEMORANDUM OPINION
Patricia King was the first woman officer to work in the field at the Boyd Unit for the Texas Department of Criminal Justice. In the field, the officers rode horses and supervised crews of inmates working outside. Lt. Robert Lummus did not want women officers in the field.
After enduring many months of what she perceived to be sexual harassment, King filed a complaint with TDCJ's equal employment opportunity office. She was not satisfied with the results of her complaint and sued TDCJ in district court.
A jury found King had been sexually harassed and awarded her $250,000 in compensatory damages. TDCJ appealed. We affirm the judgment.
INSUFFICIENCY OF THE EVIDENCE
In its first and second issues, TDCJ argues that the evidence was both legally and factually insufficient to show King was entitled to mental anguish damages and that the amount awarded by the jury for mental anguish damages was reasonable.
The trial court submitted a broad form damage question on compensatory damages, instructing the jury to consider six elements of damage but asking for just one total amount. The jury awarded King $250,000 in compensatory damages. TDCJ did not object to the broad-form submission of the question.
TDCJ did, however, voice an objection to the charge as follows:
Defendants have a sole objection, Your Honor, to the interrogatory on damages. It's our position that there is no evidence to support an award of other than nominal damages for compensatory damages; that the plaintiff's proof does not rise to the level required to gain compensatory damages for mental anguish. . . .
It is unclear from the objection whether TDCJ is simply making a global objection to the damages question or whether TDCJ is making a more specific objection that a particular element of damage had no support in the evidence and should not be included in the broad form question such as was the case in Harris County v. Smith. See Harris County v. Smith, 96 S.W.3d 230 (Tex. 2002); see also Casteel v. Crown Life Ins. Co., 22 S.W.3d 378 (Tex. 2000). TDCJ does not contend on appeal that the submission of the question was erroneous. In fact, cases on the erroneous submission of a question were not cited in any of TDCJ's briefs. We looked to the motion for judgment notwithstanding the verdict, the motion for new trial, the brief, and the reply brief and have determined that TDCJ never intended to and does not now raise a Harris County/Casteel complaint.
TDCJ only complains that the evidence is insufficient to support an award of damages based on mental anguish. It did not ask for separate damage findings. When a party does not ask for separate damage findings and fails to address each element of damages, a sufficiency of the evidence challenge is waived. See Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995); Price v. Short, 931 S.W.2d 677, 688 (Tex. App.-Dallas 1996, no writ); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex. App.-Corpus Christi 1993, writ denied). See also Harris County v. Smith, 96 S.W.3d 230, 232 (Tex. 2002). Although TDCJ claims in a footnote that its argument covers all the elements of the damages question, it does not. TDCJ's case authority and argument focuses solely on the mental anguish element of the question and does not address the other five elements identified in the special question to the jury. Because TDCJ does not attack each element, its sufficiency challenges are waived. Issues one and two are overruled.
AFFIRMATIVE DEFENSE
TDCJ also takes issue with the jury's negative finding on Question 2 regarding an affirmative defense to King's claim. It contends that the affirmative defense was conclusively proven as a matter of law, or, alternatively, the jury's finding of "no" was against the great weight and preponderance of the evidence. TDCJ does not dispute that it had the burden of proof on the affirmative defense.
Standard of Review
When the party that had the burden of proof at trial complains of legal insufficiency of an adverse finding, that party must demonstrate that the evidence establishes conclusively, i.e., as a matter of law, all vital facts in support of the finding sought. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Hatch v. Williams, 110 S.W.3d 516, 522 (Tex. App.-Waco 2003, no pet.). We first examine the record for evidence supporting the adverse finding, ignoring all evidence to the contrary. Dow Chem. Co., 46 S.W.3d at 241. If more than a scintilla of evidence supports the adverse finding, our inquiry ends. Hatch, 110 S.W.2d at 522. "More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Hatch, 110 S.W.2d at 522.
When the party complaining of the factual sufficiency of the evidence had the burden of proof at trial, it must demonstrate that the adverse finding is contrary to the great weight and preponderance of the evidence. Dow Chemical Co., 46 S.W.3d at 242; Hatch, 110 S.W.2d at 522. We weigh all the evidence, and we can set aside the adverse finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chemical Co., 46 S.W.3d at 242. In doing so, we must detail the evidence and state in what regard the contrary evidence greatly outweighs the evidence in support of the adverse finding. Id. Defense to Liability or Damages
When harassment does not result in a tangible employment action, such as discharge, demotion, or undesirable reassignment, the employer may assert an affirmative defense to liability or damages. Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807-808, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). King does not contend that she suffered a tangible employment action. There are two necessary elements to the affirmative defense: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. The defense is not established if both elements are not met.
Prevention
While proof of an anti-harassment policy is not always necessary as a matter of law, the need for a suitable policy may be addressed when litigating the first element of the affirmative defense. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. It is undisputed that TDCJ had an anti-harassment policy. It is also undisputed that King availed herself to that policy.
Prompt Correction of Behavior
Whether an employer's action in response to a sexual harassment claim is sufficient necessarily depends on the particular facts of the case — the severity and persistence of the harassment, and the effectiveness of initial remedial steps. Dillard Dep't Stores, Inc. v. Gonzales, 72 S.W.3d 398, 410 (Tex. App.-El Paso 2002, pet. denied); Wal-Mart Stores v. Davis, 979 S.W.2d 30, 37 (Tex. App.-Austin 1998, pet. denied). Even where the employer takes some remedial steps, it may still be liable if its actions were not reasonably calculated to stop the harassment. Dillard, 72 S.W.3d at 410; Davis, 979 S.W.2d at 37.
The Department does not contest the jury's finding that sexual harassment occurred. King called TDCJ's Equal Employment Opportunity office on October 3, 1997. She signed a complaint three days later. Over a month after King filed her complaint, an investigator from the EEO set up appointments to interview King and some of the other officers. TDCJ took no immediate action to separate Lummus from King. He remained her supervisor for three months. Lummus continued to discuss his own sex life with King.
Nothing more with King's complaint occurred until January of 1998 when King was assigned to work the building. In March, the EEO found that (1) there was evidence to support the allegation that Lummus made the comment after a funeral that he wanted to "reach out and pat that ass;" (2) there was evidence to support the allegation that Lummus wanted to measure King's inseam; (3) there was evidence to support the allegation that Lummus made comments to King insinuating that King was having sexual affairs with other officers and a sergeant; (4) Lummus behaved in a crude and unprofessional manner in King's presence by opening his pants to tuck in his shirt; and (5) Lummus engaged in inappropriate conduct when he made thrusting movements toward King's buttocks and deliberately bumped another officer's hand in an effort to force it to make contact with King's buttocks. When Warden Terry received the EEO's findings, he moved King back into the field where she reported to Sgt. Luke. Lummus was not to be King's field supervisor, but according to King, Lummus continued to be her lieutenant.
Terry did not like the EEO's findings. He sent a four and a half page letter to Jim Shaw, the regional director, detailing his complaints with the findings. Shaw told Terry to continue with the disciplinary action against Lummus and to use what the EEO sent. Of the five findings made by the EEO, Terry found only two instances of sexual harassment were substantiated: (1) "tucking in shirt tail in front of someone of the opposite gender;" and (2) "talking about the buttock of someone of the opposite gender." After reading the report by the EEO, Terry did not see sufficient evidence to support the inseam incident, the pelvic thrust incident, or the idea that Lummus did not want women in the field. After an employee hearing, Terry gave Lummus nine months probation, beginning the day of the hearing, and suspended him for two days without pay, beginning one week later. However, according to policy, if Terry was going to suspend Lummus at all, it was to be for at least a full week. Terry admitted he did not suspend Lummus for a full week as required by the policy but testified that it was because he misread the policy guidelines applicable to Lummus.
According to King, the harassment did not stop. King felt harassed after she was moved back into the field when Lummus and other officers discussed their sex lives, knowing King was in close proximity to where the conversations were taking place.
In a memo to the file, another investigator reviewed King's complaint at the end of April. This investigator determined that the incidents alleged by King did not rise to the level of sexual harassment, even with corroboration of two incidents by witnesses.
Application
TDCJ did nothing to separate King and Lummus for the first three months of the investigation. The warden did not like and disregarded several of the EEO's findings that he found insufficiently proved. He punished Lummus below policy guidelines. Another investigator decided no sexual harassment occurred. The harassing behavior toward King continued after she resumed her position in the field.
After examining the record for evidence that supports the jury's finding, we hold there is more than a scintilla of evidence that TDCJ did not exercise reasonable care to prevent and promptly correct sexually harassing behavior by Lummus. Considering and weighing all the evidence, the finding by the jury is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
Because TDCJ did not establish the first element of the defense as a matter of law or as against the great weight and preponderance of the evidence, we need not discuss whether King unreasonably failed to take advantage of any preventative or corrective opportunities provided by TDCJ or to avoid harm otherwise. TDCJ's third issue is overruled.
PREJUDGMENT INTEREST
For the first time on appeal, TDCJ contends the trial court erred in awarding prejudgment interest because the Texas Commission on Human Rights Act does not waive immunity for prejudgment interest.
Immunity from suit and immunity from liability are two distinct principles. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). There is no question that the TCHRA waives TDCJ's immunity from suit. The issue becomes, then, whether TDCJ is immune from liability for prejudgment interest under the Act. Immunity from liability, like other affirmative defenses to liability, must be pled or it is waived. Kinnear v. Texas Comm'n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000); Davis v. City of San Antonio, 752 S.W.2d 518, 519 (Tex. 1988).
King requested prejudgment interest in her original petition. TDCJ never pled sovereign immunity from liability as an affirmative defense to the requested interest. Thus, it waived the defense, and issue four is overruled.
ATTORNEY'S FEES
In its eighth issue, TDCJ argues that the trial court erred in awarding attorney's fees on King's retaliation claim. King initially sued TDCJ for sexual harassment and retaliation. It is undisputed that by the end of the trial, King dropped the retaliation claim, and only the sexual harassment claim was submitted to the jury.
However, at the beginning of trial, King and TDCJ entered into a stipulation that if King prevailed in her lawsuit, the issue of attorney's fees would be submitted to the trial court by affidavit. King prevailed. As an exhibit to a motion for judgment, King's attorney submitted an affidavit requesting attorney's fees in the amount of $54,262.50 at the rate of $150 per hour for 361.75 hours. In its response to King's motion for judgment, TDCJ specifically addressed the issue of attorney's fees, stating:
Defendant does not controvert plaintiff's calculation of attorneys' fees. Plaintiff's attorneys' fee rate of $150 per hour is reasonable. The calculation of 361.75 hours for the attorneys' time throughout trial for the entire case is also reasonable. Therefore, Defendant will file no affidavit controverting this "lodestar" request.
TDCJ had no objection to King's attorneys's fee rate or calculation of the number of hours for the entire case. It cannot now complain that the trial court erred in using uncontested factors to calculate attorney's fees. TDCJ has not preserved this issue. See Tex.R.App.P. 33.1. Issue eight is overruled.
INADEQUATE BRIEFING
In its fifth issue, TDCJ contends the trial court erred in excluding testimony of a defense witness to rebut King's claim that Lummus was biased against women subordinates. Specifically, TDCJ wanted this witness to be able to testify that Lummus had never harassed or discriminated against her and had treated her professionally. This witness was allowed only to testify that Lummus had never told her that he did not want women in the field.
TDCJ presents no authority in its brief or reply brief to support its position that the trial court erred in sustaining King's objection to the testimony. See Tex.R.App.P. 38.1(h). Thus, this issue is inadequately briefed and presents nothing for review. See Fox v. Parker, 98 S.W.3d 713, 728 (Tex. App.-Waco 2003, pet. denied). TDCJ's fifth issue is overruled.
In its sixth issue, TDCJ argues the trial court erred in overruling its objection to King's allegedly improper jury argument. As with its fifth issue, TDCJ presents no authority in its brief or reply brief to support its position that the trial court erred. See Tex.R.App.P. 38.1(h). Thus, this issue is inadequately briefed and presents nothing for review. See Fox v. Parker, 98 S.W.3d 713, 728 (Tex. App.-Waco 2003, pet. denied). TDCJ's sixth issue is overruled.
In its seventh issue, TDCJ contends that King failed to prove an entitlement to back pay. Specifically, TDCJ argues that sick leave is not back pay. However, TDCJ provides no authority to support its position that sick leave is not back pay. See Tex.R.App.P. 38.1(h). Thus, this issue is inadequately briefed and presents nothing for review. See Fox v. Parker, 98 S.W.3d 713, 728 (Tex. App.-Waco 2003, pet. denied). TDCJ's seventh issue is overruled.
In its ninth issue, TDCJ contends the jury's award of $250,785 in damages is manifestly unjust and excessive. Again, TDCJ presents no argument or authority to support its position that the award is manifestly unjust and excessive. See Tex.R.App.P. 38.1(h). Thus, this issue is inadequately briefed and presents nothing for review. See Fox v. Parker, 98 S.W.3d 713, 728 (Tex. App.-Waco 2003, pet. denied). TDCJ's ninth issue is overruled.
CONCLUSION
Having overruled each of TDCJ's issues on appeal, the trial court's judgment is affirmed.