Lois Martin v. County of Dallas , 464 F. App'x 407 ( 2012 )

Case: 11-10588 Document: 00511797206 Page: 1 Date Filed: 03/22/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 22, 2012
No. 11-10588 Lyle W. Cayce
Summary Calendar Clerk
LOIS MARTIN,
Plaintiff - Appellee
v.
MARIO GUEVARA,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CV-260
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
After a jury trial, the district court entered judgment against Defendant-
Appellant Mario Guevara on Plaintiff-Appellee Lois Martin’s claims for invasion
of privacy by intrusion on seclusion, assault, and intentional infliction of
emotional distress. The jury awarded Martin $10,000 in compensatory damages
on her intrusion on seclusion claim. The jury awarded Martin no compensatory
damages for the assault and emotional distress claims, but the jury awarded her
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-10588
$25,000 in exemplary damages on those claims. On appeal, Guevara challenges
the sufficiency of the evidence regarding intrusion on seclusion and the
exemplary damages award. He also contends that Texas law bars the exemplary
damages award because the jury did not award any compensatory damages on
the assault and emotional distress claims.
We AFFIRM.
I. BACKGROUND
We review a district court’s denial of a motion for judgment as a matter of
law de novo, applying the same standard as the district court. Evans v. Ford
Motor Co., 484 F.3d 329, 334 (5th Cir. 2007). That standard permits overturning
a jury verdict only if the trial record so overwhelmingly favors the moving party
that no reasonable juror could have reached the verdict. Id. Much of Martin’s
case against Guevara was established through twenty-nine deemed admissions
under Federal Rule of Civil Procedure 36.1 The twenty-nine matters admitted
were set forth in the jury instructions, which also stated that the jury must
“treat these facts as having been conclusively proved against [Guevara].” We
summarize the admitted matters and the trial evidence in the light most
favorable to Martin.
Guevara and Martin were employees of the Dallas County Constable’s
Office, Precinct 5. In March 2008 Martin transferred to Precinct 5’s civil
division, where Guevara served as her field training officer. During the training
they would ride in the same patrol car. A week into the training, they were
1
Before trial, Martin requested admissions regarding twenty-nine matters. The
district court deemed those matters admitted after Guevara failed to timely respond. See FED.
R. CIV. P. 36(a)(3). Guevara does not challenge the district court’s decision to deem the
matters admitted, nor the manner of their presentation in the jury instructions.
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riding in the patrol car when Guevara suggested that they go to his home to
have sex. He also asked Martin whether she wore thong underwear and
whether she shaved her pubic hair, and he touched her thighs and buttocks.
Martin rebuffed Guevara’s advances. Thereafter, Guevara subjected Martin to
further unwelcome advances and sexually suggestive comments, sometimes
attempting to hold her hand or whispering sexually suggestive remarks in her
ear. When she continued to rebuff him, he retaliated by telling their mutual
superior that Martin was complaining about the precinct. Martin had to assure
her boss that this was not true. The harassment abated somewhat when
Martin’s training ended in May 2008. But in July 2008 Guevara became
Martin’s supervisor after he was promoted to Sergeant. She again had to deal
with him on a daily basis, and he resumed harassing her. Martin suffered
anxiety, depression, and marital problems. She sought out psychiatric care, and
she had to take time off of work after an anxiety attack that prompted her to go
to the emergency room. When she returned to work, the harassment continued.
Martin ultimately complained to Dallas County human resources officials in
October 2008, and Guevara resigned. Guevara’s admissions include, inter alia,
that he could tell that Martin was “depressed,” “stressed” and “visibly
traumatized” by his conduct, that his conduct “constituted sexual harassment,”
that it caused Martin “severe emotional distress,” and that it “created a hostile
work environment.” Guevara also admitted that he “made physical contact with
[Martin]’s person,” and that he “intruded upon [Martin]’s solitude, seclusion or
private affairs.”
Martin brought state law claims against Guevara, as well as Title VII
claims against both Guevara and Dallas County. At trial, the jury was
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instructed to complete a special verdict form with twenty-three questions.
Questions 1 through 15 applied to both Dallas County and Guevara, the
remainder to Guevara only.
The jury found against Martin in answering the fifteen questions
applicable to the Title VII claims against both defendants. Regarding the claims
against Guevara alone, the jury answered “yes” to Question 16, which asked
whether Guevara “intruded upon [Martin]’s seclusion. Question 17 asked the
jury to assess compensatory damages for the intrusion on seclusion claim. The
jury awarded $5,000 for past physical pain and mental anguish, and $5,000 for
future physical pain and mental anguish. Questions 18 and 20 asked whether
Guevara assaulted Martin and whether he inflicted intentional infliction of
emotional distress on Martin. The jury answered “yes” to both, but the jury
awarded no compensatory damages for those claims. Question 23 concerned
exemplary damages. It asked for the amount of “exemplary damages for the
conduct found in response to Question No. 18 and 20.” The jury awarded
$25,000. The district court entered judgment reflecting the jury’s verdict, and
denied Martin’s and Guevara’s post-trial motions. Guevara timely appealed.
II. DISCUSSION
The elements of a cause of action for invasion of privacy by intrusion on
seclusion are 1) the defendant intentionally intruded on the plaintiff’s solitude,
seclusion, or private affairs, and 2) the intrusion would be highly offensive to a
reasonable person. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993).
Regarding the first element, Guevara argues that his conduct did not include the
kind of spying or intrusion on private property that tortious intrusion on
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seclusion typically involves.2 This argument is foreclosed by his admission that
he “intruded upon [Martin]’s solitude, seclusion or private affairs.” “Rule 36
allows litigants to request admissions as to a broad range of matters, including
ultimate facts, as well as applications of law to fact.” In re Carney, 258 F.3d
415, 419 (5th Cir. 2001); see also FED. R. CIV. P. 36(a)(1)(A). A matter admitted
is “conclusively established unless the court, on motion, permits the admission
to be withdrawn or amended.” FED. R. CIV. P. 36(b).
Regarding the second element of intrusion on seclusion, Guevara contends
that his conduct, though “annoying and mildly offensive,” was not “highly
offensive,” as the elements of intrusion on seclusion require. We will consider
that contention together with the argument he makes in the same vein
regarding the $25,000 exemplary damages award. Under Texas law, when
“determining the amount of exemplary damages, the trier of fact shall consider
evidence, if any, relating to: (1) the nature of the wrong; (2) the character of the
conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation
and sensibilities of the parties concerned; (5) the extent to which such conduct
offends a public sense of justice and propriety; and (6) the net worth of the
defendant.” TEX. CIV. PRAC. & REM. CODE § 41.011(a). Guevara concedes that
his conduct was “boorish, rude, childish, and even offensive.” But he asserts it
was “not such that can be said to offend a public sense of justice and propriety.”
Though his treatment of Martin “was rude to be sure,” he contends that it was
“all in all, pretty trivial.”
2
See Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 6 (Tex. App.–Corpus Christi 1991, no writ),
overruled on other grounds by Cain v. Hearst Corp., 878 S.W.2d 577, 578-79 (Tex. 1994).
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In making this argument, Guevara relies heavily on the jury’s having
answered “no” to Question 2 on the jury form, which asked whether Martin was
sexually harassed. Guevara overstates the implications of the jury’s answer to
Question 2. As noted above, Questions 1 through 15 pertained to Martin’s Title
VII claims against both Guevara and Dallas County. Guevara admitted that his
treatment of Martin “constituted sexual harassment” and “created a hostile work
environment.” The jury’s answer to Question 2 must be interpreted in light of
those admissions and the instruction that the admitted matters be regarded as
“conclusively proved against [Guevara],” but not against Dallas County. See
Geosearch, Inc. v. Howell Petroleum Corp., 819 F.2d 521, 527 (5th Cir. 1987)
(“The court must interpret verdicts in the light of the instructions, evidence, and
other surrounding circumstances.”) The jury’s answer to Question 2 can be
construed to mean only that Martin could not recover for sexual harassment
under Title VII. So interpreted, it does not support Guevara’s attempt to
minimize the conduct underlying the verdict on Martin’s state-law tort claims.
We do not share Guevara’s view of that conduct. Considered in the light
most favorable to Martin, the admissions and trial evidence show that Guevara,
a law enforcement officer, took advantage of his seniority to sexually harass a
subordinate officer for a period of at least five months, during which he
repeatedly initiated physical contact without her consent. When she continued
to reject his advances, he retaliated by lying about her to their mutual superior.
He continued harassing her even though he knew he was causing her anxiety
and depression that forced her to miss work and seek medical treatment. Texas
courts have considered similar conduct in relation to the “extreme and
outrageous conduct” element of intentional infliction of emotional distress, which
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requires deeds “so outrageous in character, and so extreme in degree, as to go
beyond all bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Morgan v. Anthony, 27 S.W.3d 928, 929
(Tex. 2000) (internal quotation marks and citation omitted). That very high
standard is satisfied by conduct comparable to Guevara’s. See, e.g., id. at 929-31;
Clayton v. Wisener, 190 S.W.3d 685, 694 (Tex. App.–Tyler 2005, pet. denied) (a
physician’s pattern of unwelcome sexual advances toward a patient, including
an attempt to deceive her into taking her shirt off, sufficed for intentional
infliction of emotional distress); see also Haynes & Boone, L.L.P. v. Chason, 81
S.W.3d 307, 311-12 (Tex. App.–Tyler 2001, pet. denied) (summarizing cases).
Guevara’s admissions and the trial evidence permitted a reasonable juror
to find that Guevara’s conduct was both “highly offensive” and deserving of a
$25,000 exemplary damages award.
Guevara also cites a Texas statute that bars exemplary damages on claims
for which no compensatory damages were awarded. TEX. CIV. PRAC. & REM.
§ 41.004. Guevara did not raise this issue before the district court, so we will not
consider it. Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir. 2010) (“An
argument not raised before the district court cannot be asserted for the first time
on appeal.”) (internal quotation marks and citation omitted).
III. CONCLUSION
The district court’s judgment is AFFIRMED.
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