B.C. v. Steak N Shake Operations, Inc.

512 S.W.3d 276

B.C., Petitioner,

v.STEAK N SHAKE OPERATIONS, INC., Respondent

No. 15–0404

Supreme Court of Texas.

Argued November 7, 2016

OPINION DELIVERED: February 24, 2017

Daniel Robert Thering, Thering & Associates, PLLC, Frisco TX, Matthew J. Kita, Attorney at Law, Matthew Ryan McCarley, Fears Nachawati, PLLC, Dallas TX, for Petitioner.

Christopher Louis Kurzner, Kurzner PC, Dallas TX, for Respondent.

Bryan O. Blevins Jr. Texas Trial Lawyers Association, Gretchen Sims Sween, Beck Redden LLP, Austin TX, James Lewis, Lewis Law Office, P.C., Maisha Colter, Aid to Victims of Domestic Abuse, Peter M. Kelly, Kelly Durham & Pittard, LLP, Houston TX, Julia F. Pendery, Attorney at Law, Dallas TX, for Amicus Curiae.

Justice Green delivered the opinion of the Court.

In this case, we must decide whether a plaintiff's remedy in a sexual assault case against her employer arises exclusively within the statutory sexual harassment framework found in the Texas Commission on Human Rights Act (TCHRA) or whether the plaintiff can bring a separate common law claim for assault. The court of appeals held that the TCHRA provides the exclusive remedy for sexual harassment. 461 S.W.3d 928, 930 (Tex. App.–Dallas 2015, pet. granted). We hold that where the gravamen of a plaintiff's claim is not harassment, but rather assault, as it is here, the TCHRA does not preempt the plaintiff's common law assault claim. Accordingly, we reverse the judgment of the court of appeals and remand the case to the court of appeals for consideration of issues not previously addressed.

I. Background and Procedural History

B.C., formerly an associate at the Frisco, Texas, Steak N Shake restaurant, alleges that she was sexually assaulted by her supervisor during an overnight shift on company property in October 2011.¹ According to B.C.'s deposition testimony, B.C.'s supervisor had called her into work at about 10:00 p.m., an hour early, to take over as the lone server in the restaurant, where she was joined only by her supervisor and a cook. Not long after midnight, B.C. discovered her supervisor and the cook drinking bottled beers in the restaurant parking lot while on a break. B.C. admits that she joined them at different times throughout the night to take a break, smoking cigarettes and even having a sip of their beer. During one break, B.C. joined her supervisor in his vehicle to avoid the light rain that had started to fall. After running out of cigarettes, the supervisor invited B.C. to accompany him on a drive to a nearby store to buy more. B.C. agreed, and after a short trip the two returned to work. Some time between 4:30 and 5:00 a.m., B.C.'s supervisor invited B.C. to smoke another cigarette, but this time he invited her to the employee restroom due to the increasingly poor weather.

Until this time, according to B.C.'s testimony, her supervisor had neither spoken nor acted in a sexually suggestive manner. The two had talked about work and their families. After only a minute or two in the restroom, however, B.C.'s supervisor allegedly pushed her against a sink, grabbed her by the back of the head, and pulled her head toward him, trying to kiss her. B.C. repeatedly told her supervisor "no" and tried to push him away, but she was unable to escape. During the struggle, B.C. alleges, the supervisor began pulling down her pants while putting his hand up her shirt. At one point, B.C. was briefly able to break loose from her supervisor's grasp only to then be pushed back against a restroom wall, where she was unable to escape him. The supervisor began to unbuckle his pants, exposing his genitals to B.C. Still holding on to B.C. and preventing her escape, the supervisor allegedly grabbed B.C.'s head, pulling it toward him. The supervisor then lost his balance and fell to the ground, allowing B.C. to finally escape and flee the restroom.

Later that day, B.C. and her mother reported the incident to Steak N Shake and the police. After completing an internal investigation, Steak N Shake was unable to confirm B.C.'s allegations, concluding that the only portion of her story supported by evidence was that someone had smoked in the employee restroom. As a result, B.C.'s supervisor was not terminated, nor was he transferred to another location. Steak N Shake extended an unqualified offer for B.C. to return to work at any Steak N Shake location, but she instead opted to terminate her employment.

B.C. later sued Steak N Shake and her supervisor, asserting causes of action including assault, sexual assault, battery, negligence, gross negligence, and intentional infliction of emotional distress.² B.C. alleged that Steak N Shake was directly responsible for the assault because her supervisor was acting as a vice principal of the Frisco Steak N Shake restaurant. Steak N Shake moved for summary judgment on all claims, asserting, among other things, that the TCHRA's statutory cause of action preempts B.C.'s common law claims. The trial court granted Steak N Shake's motion but did not provide a basis for its ruling. B.C. nonsuited her claims against her supervisor and then appealed only the trial court's ruling on her assault claim against Steak N Shake.

The court of appeals affirmed the trial court's ruling, but only on the ground that the TCHRA preempts B.C.'s assault claim. 461 S.W.3d at 929–30. Relying on our decision in Waffle House, Inc. v. Williams , 313 S.W.3d 796 (Tex. 2010), the court of appeals held that the TCHRA's statutory remedy is the exclusive remedy for workplace sexual harassment, and "[t]o allow B.C. to bring an assault claim based on the same conduct that is actionable under TCHRA as sexual harassment would permit her to circumvent the comprehensive anti-harassment regime crafted by the Legislature, rendering TCHRA's remedy limitations meaningless." 461 S.W.3d at 930 (citing Waffle House , 313 S.W.3d at 807–08 ).

II. Analysis

"We review a grant of summary judgment de novo." SeaBright Ins. Co. v. Lopez , 465 S.W.3d 637, 641 (Tex. 2015). The movant must prove that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id . ; TEX. R. CIV. P. 166a(c). We review summary judgment evidence "in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Lopez , 465 S.W.3d at 641 (quoting Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009) ).

A. The TCHRA

The TCHRA "is modeled after federal law with the purpose of executing the policies set forth in Title VII of the federal Civil Rights Act of 1964." Hoffmann–La Roche Inc. v. Zeltwanger , 144 S.W.3d 438, 445–46 (Tex. 2004) (citations omitted); see TEX. LAB. CODE. § 21.001. Combating gender-based discrimination is one of those policies. Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 63, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) ; Zeltwanger , 144 S.W.3d at 445. Accordingly, "Texas courts look to analogous federal law in applying the state Act." Waffle House , 313 S.W.3d at 804 (citing Zeltwanger , 144 S.W.3d at 445–46 ; Quantum Chem. Corp. v. Toennies , 47 S.W.3d 473, 476 (Tex. 2001) ; Specialty Retailers, Inc. v. DeMoranville , 933 S.W.2d 490, 492 (Tex. 1996) (per curiam)). Additionally, the TCHRA was enacted to:

secure for persons in this state ... freedom from discrimination in certain employment transactions, in order to protect their personal dignity; ... make available to the state the full productive capacities of persons in this state; ... avoid domestic strife and unrest in this state; ... preserve the public safety, health, and general welfare; and ... [to] promote the interests, rights, and privileges of persons in this state.

TEX. LAB. CODE. § 21.001(4) –(8). "Sexual harassment is a recognized cause of action under Title VII and the TCHRA," and when pursuing a sexual harassment claim there are generally two types: quid pro quo and hostile work environment. Waffle House , 313 S.W.3d at 804 (citing Zeltwanger , 144 S.W.3d at 445 & n.5 ).

B. Waffle House , Inc. v. Williams

Because the court of appeals based its decision largely on its interpretation of our 2010 decision in Waffle House , our analysis begins there. See 461 S.W.3d at 930. In Waffle House , we identified the issue before us as "whether a common-law negligence action should lie against [an] employer for allowing [a] coworker's tortious or criminal conduct to occur, or whether, instead, a statutory regime comprehensively addressing employer-employee relations in this context should exclusively govern." 313 S.W.3d at 803. We warned that should the common law claims for negligent supervision and retention be allowed to coexist with "the panoply of special rules" crafted by the Legislature and embodied in the comprehensive TCHRA scheme "in any case where the alleged sexual harassment included even the slightest physical contact," then

[t]he statutory requirements of exhaustion of administrative remedies and the purposes behind the administrative phase of proceedings, the relatively short statute of limitations, the limits on compensatory and punitive damages, the requirement that the plaintiff prove an abusive working environment, and all other special rules and procedures governing the statutory sexual-harassment claim could be evaded.

Id . at 807. Underlying our concern was the recognition that the Legislature enacted the TCHRA for the purpose of balancing the needs of the citizens of our state to have a cognizable claim for sexual harassment with the interests of employers who are required to provide a workplace free from gender-based discrimination. See id. at 802–07. Stated differently, this balance affords an aggrieved party a claim and remedy, but it also limits potential claimants, provides defenses to employers otherwise liable for the actions of their employees, and establishes a public policy that favors...