Solis v. S.V.Z.

566 S.W.3d 82

Gerardo SOLIS, Osmin Turcios, Chipotle Mexican Grill of Colorado, LLC, and Chipotle Mexican Grill, Inc., Appellants

v.S.V.Z., Individually and as Next Friend of A.Z., Her Minor Child, Appellee

NO. 14-17-00162-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed November 20, 2018

Rehearing and Rehearing En Banc Denied December 28, 2018

Lauren Beck Harris, Steven Jon Knight, Paula Denney, Susan E. Cates, Houston, TX, Sean Daniel Jordan, Austin, TX, Kendra Beckwith, Denver, CO, for Appellants.

William Leroy Van Fleet, Adrian V. Villacorta, Benjamin Lewis Hall, Houston, TX, for Appellee.

Panel consists of Justices Christopher, Jamison, and Brown.

Tracy Christopher, Justice

This civil case arises out of the commission of multiple criminal acts, the most serious of which involve the repeated sexual assault of a 16-year-old girl by her 26-year-old supervisor. The assaults against the girl were not forcible—she "consented" to the sexual intercourse—but because the girl had not yet attained the legal age of consent, each act of intercourse constituted a statutory rape. See Tex. Penal Code § 22.011(a)(2) ; In re B.W. , 313 S.W.3d 818, 822 (Tex. 2010) (referring to this penal statute as a "statutory rape statute").

The girl’s mother filed suit after learning of the illicit sexual relationship. She asserted three common law claims: the first was against the supervisor for sexual assault; the second was against the supervisor’s manager for aiding and abetting in the sexual assaults; and the third was against the restaurant where they worked for sexual assault as well, under a theory that the restaurant was directly liable for the conduct of its vice principal. In addition to these claims, the girl’s mother pursued a statutory claim for sexual harassment against the restaurant. The jury returned a verdict in favor of the girl on all of these claims, and the trial court rendered judgment based on the jury’s award.

The main issue on appeal concerns the legal effect of the girl’s minority. Because the girl was underage, the trial court ruled that her conduct was wholly irrelevant to the jury’s determination of liability and actual damages. The trial court accordingly precluded the defense from eliciting testimony about why the girl had consented to a sexual relationship with her supervisor. The trial court also issued a charge instruction stating that the girl’s conduct could not be considered for any purpose.

We conclude that the trial court’s charge instruction was erroneous and that the jury should have been allowed to hear and consider evidence of the girl’s conduct, as that evidence was relevant to the determination of actual damages. Because the erroneous instruction probably led to the rendition of an improper judgment on the common law claim of sexual assault against the supervisor and on the statutory claim of sexual harassment against the restaurant, we conclude that those claims must be remanded for a new trial.

As for the remaining common law claims, we conclude that the sexual assault claim against the restaurant is preempted by statute, and that the aiding and abetting claim against the manager must fail because it does not exist under our common law and because no reasons have been given for its recognition in this case. Accordingly, we render take-nothing judgments as to those claims.

BACKGROUND

After she turned sixteen, A.Z. began working as an entry-level crew member at Chipotle Mexican Grill, the national chain of fast-casual restaurants. Gerardo Solis worked alongside her, also as a crew member. He was married, twenty-five years old, and soon to turn twenty-six.

The first interaction that Solis had with A.Z. occurred after he bumped into her breasts. Solis apologized for the incident, but he used the opportunity to crack jokes and learn more about A.Z. He asked about her favorite restaurant, and he invited her to dine out with him. A.Z. declined the offer, but Solis persisted.

Over the course of more than a month, Solis pleaded with A.Z. nearly fifteen times to go out with him. A.Z. eventually acquiesced. They saw a movie first, and afterwards they ate out. They had two or three more dates, and then Solis kissed A.Z. Soon after that, he began touching her breasts.

At the beginning of their dating relationship, Solis was still just a crew member, but then Chipotle promoted him, first to kitchen manager and then again to service manager. With these more supervisory roles, Solis had the authority to tell A.Z. to come in early if she were needed, to go home early if she were not needed, and what to do when she was on the clock.

Following Solis’s promotions, the physical contacts gradually escalated. Solis digitally penetrated A.Z.’s vagina and anus. He performed oral sex on her, which she reciprocated. Then he had sexual intercourse with her. Sometimes they would sneak out to the dumpster area behind the restaurant to have sex. Other times they would have sex in a park. In all, they had sex about forty times, and it was always unprotected.

A.Z. did not reveal the sexual relationship to her mother, S.V.Z. ("Mother"), though Mother nearly discovered the relationship herself. Mother went to the restaurant one evening to pick up A.Z., believing that A.Z. had worked a full shift that day, when in fact A.Z. had spent the day elsewhere with Solis. Mother became distressed when she could not find her daughter, and she asked to speak with the general manager, Osmin Turcios.

Mother told Turcios that she was prepared to call the police to report that her daughter was missing. Turcios responded that there was no need to call the police because a female coworker had already taken A.Z. home. That statement was untrue because Turcios knew that A.Z. was currently with Solis.

After stepping away to a private area, Turcios called Solis and advised him to take A.Z. home because Mother was actively searching for her. A.Z. overheard this conversation because Solis had placed the call on speaker. Heeding Turcios’s advice, Solis dropped A.Z. off at her home, before Mother could return home herself. Once home, A.Z. did not reveal to Mother where she had been.

A.Z. continued to work at Chipotle for the next two or three weeks, and then she left the country for a planned vacation. Mother did not accompany A.Z. on the vacation. While A.Z. was abroad, Mother learned from one of A.Z.’s coworkers about A.Z.’s relationship with Solis. Mother returned to the restaurant and accused Turcios of covering up the relationship. Mother again said that she intended to call the police, but she never did. She filed this civil lawsuit instead.

A.Z. was, in her own words, "mad" when she learned that Mother had filed the lawsuit, but she never returned to Chipotle after coming home from her vacation. As she explained: "I felt like that was a hostile place to work at. I didn't feel safe."

Chipotle conducted an internal investigation after Mother filed the lawsuit. Solis was terminated as a result of that investigation, though not because of his sexual relationship with A.Z, which he denied having. Solis was terminated because Chipotle determined that he had lied about the extent of his electronic communications with A.Z.

Solis relocated to Mexico after his termination. He did not appear at the trial, but the trial court allowed his discovery responses to be read into evidence. In those responses, Solis invoked his Fifth Amendment privilege against self-incrimination.

A.Z. testified during the trial that Chipotle had a culture of harassment. She said that Turcios and the other managers used security cameras to watch women and comment on their bodies. One of these other managers repeatedly asked A.Z. for a kiss in exchange for her paycheck. Solis also mentioned to her that Turcios talked about wanting to have sex with her once she turned seventeen.

When the questioning turned to Solis, A.Z. denied having had romantic feelings for him: "We didn't have a relationship," she testified. "He used me for sex." A.Z. explained that Solis promised her better work hours and a better schedule in exchange for sex, and that she assented to his advances because she wanted to keep her job: "I just felt like I had to [say yes to his advances]. I was pressured."

A clinical psychologist likened A.Z. to a "rape victim." The psychologist testified that A.Z. endured "very traumatic, very degrading, dehumanizing events." The psychologist testified that A.Z. suffered from crying spells, fatigue, sleeplessness, and anxiety, and that A.Z. experienced "intense feelings of helplessness ... intense shame, intense guilt." The psychologist also opined: "I have to say, in 30 years of listening to graphic, very graphic cases of incest—violations to people, [A.Z.’s case] was one of the worst, one of the very worst stories I have ever heard."

Not much evidence was admitted to counteract these characterizations. A.Z. briefly acknowledged that she once thought she was "happy" when she was with Solis. The psychologist similarly testified that A.Z. had "pursued" a relationship with Solis, and that A.Z. once "thought she was in love."

Defense counsel sought to expand on this limited testimony—specifically, by showing that A.Z. had desired a relationship with Solis—but in a hearing conducted outside the presence of the jury, the trial court ruled that such evidence would not be admissible until the exemplary damages stage of the trial.

Defense counsel made an offer of proof. Counsel represented that if A.Z. had been cross-examined about her mental state and the broader issue of her consent, the testimony would have established that A.Z. believed that she was in a romantic relationship with Solis; that aside from concealing that relationship from Mother, A.Z. did not think that anything was wrong with her and Solis being together; that A.Z. wanted Solis to divorce his wife; that A.Z. communicated with Solis even after Mother filed the lawsuit; and that A.Z. saved photographs of her and Solis...