By Brandi O. Brown, J.D.
She had other statutory remedies available to her for claims of sexual harassment by the union board member.
Vacating a default judgment entered against a union board member for intentionally inflicting emotional distress in violation of Texas law, the Fifth Circuit ruled that the longshoreman could not sustain the claim. She could have brought, and in fact did bring, a sexual harassment claim premised on the same facts. Therefore, she failed to demonstrate there was no alternative cause of action available to address the conduct. The court held also that a party’s failure to file a motion to set aside a default judgment in district court did not prevent it from appealing that judgment. The case was remanded (Stelly v. Duriso, December 11, 2020, Haynes, C.).
Wanted to be her ‘sugar daddy.’ In 2014, the plaintiff began working as a longshoreman for West Gulf Maritime Association (”WGMA”). She affiliated with two local unions of the International Longshoremen’s Association (”ILA”), Local 1316 and Local 21. She worked alongside a member of the board for both of those locals and he started harassing her soon after she started going to the hiring halls. He asked her several times if she needed a “sugar daddy” and he made it clear he wanted to serve in that role. He frequently described the sexual acts he wanted to perform on her. He also threatened her that if she did not “learn to ‘play ball’ like the other women there,” it would negatively impact her ability to get jobs.
Complaints and lawsuit. Eventually she filed an internal complaint with one of the local unions, Local 21, but it did nothing to stop the harassment. Instead, this led to retaliation by the board member, who screamed at her, threatened her, and ordered the foremen to pass her over for work. She next filed a complaint with the WGMA, which finally resulted in the board member being suspended pending investigation. Nevertheless, he continued to appear at the hiring halls to harass her. Ultimately, she sued the board member, both local unions, and the WGMA in federal district court. She asserted employment discrimination and retaliation claims against all of the entities and she asserted an IIED claim against the board member under Texas law.
Judgments. The board member evaded service and did not defend the suit, which ultimately led to a default judgment against him. The employee was awarded $75,000 in damages on that claim. The claims against the other defendants went to trial and although the jury awarded her $300,000 in punitive damages against the two local unions, as well as lost wages, ultimately the trial court granted Local 1316’s judgment as a matter of law and directed remittitur against Local 21, leaving her with only a judgment of just over $60,000. The claim against WGMA had resulted in judgment as a matter of law. The district court also certified judgment against the board member under Rule 54(b) and he appealed.
IIED claim requires no alternatives. Noting that even the slightest abuse of discretion could justify reversal of a default judgment, the court was in agreement with the board member that default judgment on the IIED claim was an abuse. The court noted that not all conduct that qualifies as IIED is actually actionable as an IIED claim. The plaintiff bringing the claim must demonstrate that there is no alternative cause of action available because in Texas, the IIED claim is considered “a ‘gap-filler’ tort reserved for ‘those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.’” What that means is that if a plaintiff could bring a sexual harassment claim based on the same facts, then he or she generally could not sustain an IIED claim. Thus, the Texas Supreme Court has noted that IIED claims against an employer and individual employees that are premised on sexual harassment could be foreclosed by causes of action under Title VII and the TCHRA.
No gap here. In a footnote, the court conceded that the Texas Courts of Appeals and federal district courts were split on whether lack of individual liability under those laws constituted a “gap” with regards to coworkers and supervisors for purposes of an IIED claim. However, while acknowledging that the state’s highest court had not definitely resolved the question, the court predicted that it would reject an IIED claim such as this one, where the allegations underlying the plaintiff’s IIED claim all stemmed from the same acts of sexual harassment.
And the results of this prediction were born out in the body of the appeals court’s decision. It explained that the “gravamen” of the employee’s IIED claim was for sexual harassment and it was based on the board member’s sexual harassment in the hiring halls and retaliation after she complained. She had alternative remedies for that behavior. In fact, she could, and did, seek redress against WGMA and both locals under Title VII and she prevailed in part. The availability of those statutory remedies, based on the same facts, therefore, foreclosed her IIED claim against the board member. This led the appeals court to vacate the default judgment and remand.
No motion to set aside required. Before reaching the merits, however, the appeals court considered, and rejected, the notion that the board member could not appeal the judgment without having first moved at the district court level to have it set aside. Although there was a circuit split on whether a party should file a Rule 60(b) motion with the trial court prior to appeal, the court held that failure to do so does not prevent a party from appealing the judgment. There was no statute or rule that required a defaulting party to contest the judgment in district court first.
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