Legal Business Class

Read Gonzalez v. Dillard DepartmentStores

What action or actions would you take if you were thestore manager and Gonzalez came to you complaining about Tellez’behavior?(minimun 300 words)

Facts

The evidence in this case was a swearing-match. We here outlinethe facts in a light favorable to the verdict, along withuncontroverted evidence whether favoring the verdict or not. Inassaying factual sufficiency, we will cite additional evidence asnecessary. David Gonzales started work at Dillard's DepartmentStore in August 1994. Although he really wanted to work in theelectronics department, he accepted a position as a commissionedsalesperson in the ladies' shoe department. Gonzales's supervisorwas Daniel Tellez. In the beginning, Gonzales was excited about hisjob, but he became uncomfortable with Tellez's behavior after a fewmonths. Gonzales described Tellez as getting "too comfortable" withhim. He testified Tellez would put his hand on Gonzales's shoulder;"I didn't like the way he touched me ... it was a caress." Tellezcalled Gonzales "his little pumpkin." Gonzales never mentioned hisdiscomfiture to Tellez, nor did he complain to anyone else for somemonths. He tried to handle the situation by avoiding Tellez.Gonzales described Tellez's behavior as becoming more overt after atime, "[i]t was more of a come to me." At various times, Tellezwould rub his back, put his arm around Gonzales's midsection,pinch his midriff, and hug or touch him with a "softness that [was]sexually suggestive."

Besides "bearhugs," Gonzales described several specificincidents with Tellez he found offensive. For example, when theywere both behind the cash register because Gonzales needed a voidor an approval, both transactions requiring a manager, Tellez wouldcome "behind my back and he just kind of like leans forward. Theguy is pretty big much bigger than me. And he just rubs his—I mean,I could feel ... his penis, like, on my back." Gonzales testifiedthis happened on many occasions. Another time, Tellez pokedGonzales in the buttocks with a shoebox while Gonzales wasassisting a customer. On June 12, Tellez instructed him to clean adisplay. While concentrating on the job, Tellez came up behind him,hugged him, and squeezed him. Gonzales could again feel Tellez'spenis against his buttocks. 402 Tellez made several suggestiveremarks to Gonzales. He accusing Gonzales of "flirting" with a malecustomer. When a co-worker was popping Gonzales's sore back duringthe Christmas rush, Tellez walked in, asked what they were doing,and when told said, "no, no, no. I'm the only one who can getthrough the back." Another time, Gonzales asked a co-worker for astick of gum, was told he had none, and Tellez interjected,"[w]ell, I just brushed my teeth. Would you like for me to stick mytongue in your mouth?" Gonzales first complained about thissituation in October 1994 to Albert Madrid, a police officer whoalso worked at Dillard's as a security guard. According to Madrid,Gonzales related that he felt he was the victim of sexualharassment, and he asked for his advice on what he should do.Madrid gave Gonzales three suggestions: that he report thesituation to a supervisor, all the way up the chain of command ifnecessary; document all incidents by keeping a journal; and findand read Dillard's sexual harassment policy. Gonzales did not dothe things Madrid suggested, but simply tried to avoid Tellez asmuch as possible, often by hiding in the stockroom. On May 20,1995, Gonzales finally complained to store manager Marva Ferrero.Ferrero began an investigation, but did not speak to Tellez aboutGonzales's complaint until June 12. She did have a departmentalmeeting within a week of the complaint. At this meeting, she toldall shoe department employees, including Tellez, that no horseplay,unprofessional conduct, or touching of any kind would be toleratedat Dillard's

Tellez made several suggestive remarks to Gonzales. He accusingGonzales of "flirting" with a male customer. When a co-worker waspopping Gonzales's sore back during the Christmas rush, Tellezwalked in, asked what they were doing, and when told said, "no, no,no. I'm the only one who can get through the back." Another time,Gonzales asked a co-worker for a stick of gum, was told he hadnone, and Tellez interjected, "[w]ell, I just brushed my teeth.Would you like for me to stick my tongue in your mouth?" Gonzalesfirst complained about this situation in October 1994 to AlbertMadrid, a police officer who also worked at Dillard's as a securityguard. According to Madrid, Gonzales related that he felt he wasthe victim of sexual harassment, and he asked for his advice onwhat he should do. Madrid gave Gonzales three suggestions: that hereport the situation to a supervisor, all the way up the chain ofcommand if necessary; document all incidents by keeping a journal;and find and read Dillard's sexual harassment policy. Gonzales didnot do the things Madrid suggested, but simply tried to avoidTellez as much as possible, often by hiding in the stockroom. OnMay 20, 1995, Gonzales finally complained to store manager MarvaFerrero. Ferrero began an investigation, but did not speak toTellez about Gonzales's complaint until June 12. She did have adepartmental meeting within a week of the complaint. At thismeeting, she told all shoe department employees, including Tellez,that no horseplay, unprofessional conduct, or touching of any kindwould be tolerated at Dillard's.

June 12 was the first opportunity Ferrero had to meet withTellez after being instructed to do so by the Dillard's corporateoffice.[1] At that meeting, she told Tellez there had been aharassment complaint against him, that verbal abuse, ridicule orphysical contact would not be tolerated, and that he must conducthimself in a professional and positive manner at all times. Ferrerotestified she found nothing to corroborate or substantiateGonzales's claim of harassment. Tellez denied any such conduct. Hiswritten response to the charges reads: "I do not feel that thesecharges are in any way, shape or form are true. I do, in fact,understand Dillard's viewpoint and legal ramifications, although[I] feel that this documentation is not justified because ofpersonal conflict with David Gonzales." Gonzales conceded thatTellez never asked him for sexual favors...

Dillard's complaints on appeal Dillard's complaints fall intofive categories: (1) intentional infliction of emotional distress;(2) sexual harassment under the Texas Commission on Civil RightsAct; (3) exemplary damages; (4) double recovery; and (5) attorney'sfees. We will address the complaints in that order

Intentional infliction of emotional distress In its first issueon appeal, Dillard's urges that, as a matter of law, the evidencedoes not rise to the level required to prevail on his intentionalinfliction of emotional distress claim; that is, Gonzales did notprove conduct so atrocious as to exceed all possible bounds ofdecency. After examining the evidence in the light most favorableto Gonzales, we agree that, as a matter of law, the behaviorGonzales complains of does not meet the difficult standard forrecovering under this tort.

In his second issue on appeal, Dillard's urges that judgmentbased upon sexual harassment cannot stand because Gonzales failedto prove either quid pro quo or severe and pervasive misconduct.Dillard's brings both legal and factual sufficiency challenges tothe sexual harassment judgment. In reviewing this issue, we utilizethe well-established standards regarding legal and factualsufficiency of the evidence. McLure, 63 S.W.3d at 72, 80.

Term, condition, or privilege of employment Having found thatsufficient evidence supports the jury's findings that Gonzales wassubjected to unwelcome, offensive conduct of a sexual nature andthat the conduct was directed at Gonzales because of his gender, weturn to the issue of whether there is evidence that the harassmentaffected a term, condition, or privilege of Gonzales's employment.Gonzales asserts he was constructively discharged, and the jury sofound

In its third issue, Dillard's claims it proved as a matter oflaw that it had a reasonable anti-harassment policy, which Gonzalesfailed to invoke for many months, and when he did, Dillard'smanagement acted promptly and effectively

Conclusion Judgment for David Gonzales on his claim ofintentional infliction of emotional distress is reversed andrendered that Gonzales take nothing on that claim. We also reverseand render the exemplary damages award. Judgment for David Gonzaleson his claim for employment discrimination under the TCHRA isaffirmed, including the attorney's fee award. Thus, we affirm theaward for lost wages in the amount of $10,000 and compensatorydamages in the amount of $300,000, with interest on these amountscalculated in the same manner as in the Amended Final Judgment. Wealso affirm the attorney's fee award of $421,085 for representationbefore the trial court, with provisional awards of $75,000 forrepresentation in the court of appeals and $25,000 in the TexasSupreme Court