Court of Appeals of Texas, Austin.
Deborah BULLOCK, Guardian of Joann L. Hoffman, Appellant,
AUSTACO, Inc. and Robert Villarreal, Appellees.
Aug. 14, 1997.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. 95-12371, HONORABLE HUME COFER, JUDGE PRESIDING
Before Justices B.A. SMITH.
*1 Deborah Bullock, the guardian of Joann L. Hoffman, appellant,1 challenges a trial-court summary judgment for appellees Austaco, Inc. and Robert Villarreal. She contends the trial court erred in granting summary judgment on her claims for disability discrimination, intentional infliction of emotional distress, and negligent supervision and training. We will affirm in part and reverse and remand in part the trial court’s summary judgment.
Joann Hoffman, a woman in her early twenties, suffers from Down’s Syndrome and has mental and physical disabilities and a severe speech impediment. In October 1993, Hoffman began work as a lobby attendant for the Wells Branch Taco Bell (“Taco Bell”), a restaurant owned by Austaco. Austaco has defined the essential functions of the lobby assistant position to include wiping off tables, cleaning trays, placing taco sauce on the condiment stand, replacing napkins, assisting customers, mopping, cleaning and stocking restrooms, emptying trash containers, and assisting other crew members. Hoffman performed her job with the assistance of a job coach; however, she was incapable of performing approximately thirty to forty percent of the essential functions of a lobby assistant.2 For example, she was incapable of cleaning and stocking the restrooms or emptying the trash containers, and she could not fully assist customers and other crew members. Additionally, Hoffman had difficulty prioritizing tasks; she would, for example, spend her time sweeping a relatively clean floor instead of wiping off a dirty table.
Despite Hoffman’s inability to perform all of the essential functions of a lobby assistant, Austaco allowed her to hold that position, and for the first nine months of her employment, she received generally favorable evaluations from the Wells Branch Taco Bell management. In November of 1994, however, appellee Robert Villarreal became general manager of the restaurant. From that point until Hoffman resigned in February of 1995, Hoffman received poor evaluations. During the same period, Don Barton, Austaco’s director of human resources, visited the Wells Branch Taco Bell three times to observe Hoffman’s performance as lobby attendant. From these visits, he concluded that Hoffman could not meet the minimum standards of that job as to both performance and efficiency.
Also during the same period, two of Hoffman’s coworkers repeatedly teased and harassed her. Specifically, the coworkers called her names, stuck their tongues out at her, mimicked her, and made fun of the way she walked. They threw food at her, hit or threatened to hit her with their caps, and opened a door into her when they knew she was standing in front of it. Leola Colwell, Hoffman’s mother, notified Barton of the coworkers’ conduct. Additionally, Jerry Schwartz, Hoffman’s sister, complained about the coworkers’ behavior to Villarreal. At Schwartz’s request, Villarreal counseled the coworkers against teasing Hoffman; he did not, however, take any further disciplinary action against them. In February of 1995, Hoffman was given the choice to resign or be terminated. She chose to resign.
*2 Hoffman filed suit against Austaco and Villarreal, claiming that they discriminated against her on the basis of her disability in violation of the Texas Commission on Human Rights Act. See Tex. Lab.Code Ann. §§ 21.051, . 105 (West 1996) (the “Human Rights Act”). She also brought claims against them for intentional infliction of emotional distress, defamation, and negligent supervision and training. Upon Austaco and Villarreal’s motions, the trial court rendered a final summary judgment that Hoffman take nothing on her claims. Hoffman appeals claiming that genuine issues of material fact exist as to her claims for disability discrimination, intentional infliction of emotional distress, and negligent supervision and training.
We review the trial court’s summary judgment de novo. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
Hoffman challenges the trial court’s summary judgment in one point of error consisting of three subparts: (1) the trial court erred in granting summary judgment on Hoffman’s disability discrimination claim; (2) the trial court erred in granting summary judgment on Hoffman’s intentional infliction of emotional distress claim; and (3) the trial court erred in granting summary judgment of Hoffman’s negligent supervision and training claim.
Hoffman’s petition alleges that Austaco violated the Human Rights Act by illegally discriminating against her and terminating her employment because of her disability. See Tex. Lab.Code Ann. §§ 21.051, .105 (West 1996). Conversely, Austaco argues that, because Hoffman could not perform the essential functions of her job, it did not violate the Human Rights Act when it terminated her employment.
Under the Human Rights Act, “[a]n employer commits an unlawful employment practice if because of ... disability ... the employer ... discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment....” Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 87-88 (Tex.App.-Austin 1995, no writ).
*3 The federal law most applicable to Hoffman’s case is the Americans with Disabilities Act (the “ADA”). See Kitchen, 903 S.W.2d at 88-89.
Austaco contends that it did not illegally discriminate against Hoffman on the basis of her disability because, as a matter of law, she was not a “qualified individual with a disability.” Hoffman may show her qualification by proving (1) that she can perform all of the essential job functions of a lobby attendant without modifications or accommodations, or (2) that some reasonable accommodation by Austaco would enable her to perform the job. See id. at 91.
Hoffman does not dispute the fact that she could not perform all of the essential functions of the lobby attendant job without modifications or accommodations. She contends, however, that Austaco modified Hoffman’s job to the extent that she was not required to perform several functions ordinarily required of a lobby attendant. She argues that, because a question of material fact exists as to whether she could perform all of the essential functions of her modified position, the trial court erred in granting Austaco’s motion for summary judgment. We disagree.
The ADA, and therefore the Human Rights Act, does not require an employer to eliminate essential functions of a position to accommodate an employee with a disability. 91 F.3d 129 (1996).
*4 An employer who allows an employee with a disability to work for a period of time without requiring the employee to perform certain essential functions of a job is not precluded from later requiring the employee to perform those essential functions. In other words, the employer has not modified the essential functions required for that particular job. See id. at 1000. For example, in Champ v. Baltimore County, a police department allowed Champ, a police officer who had suffered a disability, to work “light-duty” for sixteen years. Id. at 994. The police department required all officers to be able to perform the same essential functions, and the undisputed facts showed that Champ could not perform all of those functions. Id. at 995-96. During his sixteen years of “light-duty” service, Champ had not been required to perform those essential functions that he could not perform due to his disability. When the police department faced budget constraints, it placed Champ on disability retirement, and Champ sued the department for violations of the ADA. On summary judgment, the trial court found that Champ could not perform the essential functions of the job and was, therefore, not a “qualified individual with a disability.” Id. at 1000. The court noted “[t]he fact that Champ has [competently] fulfilled the responsibilities of his various light-duty assignments since his injury ... fails to undermine ... the importance of requiring all officers to be able to perform the essential functions of their jobs.” Id.
We believe that the facts in Hoffman’s case are similar to those in Champ. The summary judgment record establishes that Hoffman could not perform at least thirty to forty percent of the essential functions of a lobby attendant. She could not clean the restrooms or empty trash containers, nor could she fully assist customers or other crew members. Additionally, as to those functions she could perform, Hoffman could not meet Austaco’s minimum standards for performance and efficiency. The fact that Austaco had allowed Hoffman to perform the job of lobby assistant without having to perform certain responsibilities does not change the fact that Hoffman is unable to perform all of the essential functions of that job. Accordingly, we hold that the summary-judgment record establishes as a matter of law that Hoffman was not a qualified individual with a disability and we overrule subpart one of Hoffman’s point of error.3
Intentional Infliction of Emotional Distress
In subpart two of her point of error, Hoffman asserts that the trial court erred in granting summary judgment as to her claim for intentional infliction of emotional distress because questions of material fact exist as to every element of that claim. To recover for the intentional infliction of emotional distress, Hoffman must prove that (1) Austaco and Villarreal acted intentionally or recklessly; (2) their conduct was extreme and outrageous; (3) their actions caused her emotional distress; and (4) the emotional distress was severe. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995).
*5 Austaco and Villarreal contend the conduct alleged by Hoffman is not “extreme and outrageous” conduct that caused Hoffman severe emotional distress. Extreme and outrageous conduct is that which exceeds all possible bounds of decency, and is regarded as utterly intolerable in a civilized community as a matter of law. 803 S.W.2d 711 (Tex.1991).
Hoffman alleges that her coworkers repeatedly teased and harassed her, including sticking out their tongues at her, calling her names, mimicking her facial expressions and the way that she walked, making fun of the way she talked, deliberately hitting her with the door when they opened it, hitting or threatening to hit her with their caps, and throwing food at her. She further contends that Austaco’s management, including Villarreal, knew of Hoffman’s coworkers’ conduct and failed to stop it. Indeed, Hoffman complains that Villarreal himself took part in teasing her. As a result of this conduct, Hoffman alleges that she became and remained extremely upset: on at least one occasion she cried while at work, she would yell back at her coworkers, she would come home extremely upset, yelling about the coworkers and Villarreal, and sometimes she would act out the things that were happening to her at work. Hoffman contends that she is still bothered by her coworkers’ conduct: she becomes upset whenever she is driven by the Wells Branch Taco Bell and she becomes visibly angry at the mention of her coworkers’ names. As noted above, Hoffman suffers from Down’s Syndrome. This fact could also reasonably affect a trier of fact’s opinion as to whether this conduct was extreme and outrageous and caused Hoffman severe emotional distress.4 Because this case comes to us on summary judgment, we must take all these factual allegations as true. We cannot say as a matter of law that a reasonable trier of fact could not find for Hoffman on her intentional infliction of emotional distress claim.
*6 Austaco and Villarreal also assert that the Texas Workers’ Compensation Act bars Hoffman’s intentional-infliction-of-emotional-distress claim. See Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex.1981).
Austaco and Villarreal cite Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 681-82 (Tex.App.-El Paso 1997, writ requested). Austaco and Villarreal were notified of Hoffman’s coworkers’ conduct, yet according to Hoffman, they did not stop it.
Additionally, Villarreal contends that he cannot be held personally liable for the intentional torts of Hoffman’s coworkers. As noted above, however, Hoffman alleges that Villarreal knew of the employees’ conduct and did not take sufficient steps to stop it. She further alleges that Villarreal joined the coworkers in teasing her. Based upon these facts, Hoffman could assert a cause of action for intentional infliction of emotional distress against Villarreal individually.
Given the facts discussed above, we cannot say as a matter of law that Austaco and Villarreal did not engage in extreme and outrageous conduct that caused Hoffman severe emotional distress. Accordingly, we sustain subpart two of Hoffman’s point of error.
Negligent Supervision and Training.
In subpart three of her point of error, Hoffman challenges the trial court’s summary judgment as to her claim for negligent supervision and training. She argues that Austaco and Villarreal did not establish that her claim is barred by the Texas Workers’ Compensation Act. Specifically, she contends Austaco failed to prove that Hoffman had notice it was a subscriber to the act.
The record contains evidence that Austaco is a subscriber under the Texas Workers’ Compensation Act. Furthermore, it contains proof that Hoffman had received prior Workers’ Compensation benefits. This summary-judgment proof is sufficient to establish that Hoffman had constructive notice that Austaco was a subscriber under the act. See Regalado v. H.E. Butt Grocery Co., 863 S.W.2d 107, 110 (Tex.App.-San Antonio 1993, no writ). We, therefore, overrule subpart three of Hoffman’s point of error.5
*7 Having overruled subparts one and three of Hoffman’s point of error, we affirm the trial court’s summary judgment as it pertains to Hoffman’s claims for disability discrimination and negligent supervision and training. However, because questions of material fact exist, we reverse the summary judgment as it relates to Hoffman’s claim for intentional infliction of emotional distress and remand that part of the cause for a trial on the merits.
For clarity, we will refer to both the appellant and her ward as “Hoffman.”
The summary-judgment evidence tends to establish that Hoffman was capable of performing only thirty to forty percent of the essential functions of the lobby assistant job. Hoffman cites this evidence as indicating that she could not perform thirty to forty percent of those essential functions. Because the case was decided on summary judgment, we accept as true Hoffman’s concession that she could not perform thirty to forty percent of the essential functions of her job.
Due to this disposition, we need not address whether Hoffman was estopped from asserting her claim under the Human Rights Act.
It is well established that defendants take their plaintiffs as they find them. Austaco and Villarreal cannot, therefore, rely on the reactions of a non-disabled person to show that Hoffman’s reactions did not indicate severe emotional distress.
Although the Texas Workers’ Compensation Act bars Hoffman’s cause of action for negligent supervision and training, evidence of Austaco and Villarreal’s negligent supervision may be relevant to their liability for intentional infliction of distress. As noted above, the inaction of Austaco and Villarreal in the face of extreme and outrageous conduct by Hoffman’s coworkers could render Austaco and Villarreal liable themselves for intentional infliction of emotional distress. See Soto, 942 S.W.2d at 681-82.