Appeals court must consider all evidence, merits of employee’s sexual assault claim
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Thursday, April 9, 2020

Appeals court must consider all evidence, merits of employee’s sexual assault claim

By Joy P. Waltemath, J.D.

Although the former employee filed her evidentiary response (including 461 pages of evidence) to Steak N Shake’s motion one day late, once the trial court said it had considered the "evidence," on appeal the court of appeals was required to consider it too.

In a case involving an alleged workplace sexual assault by a Steak N Shake supervisor, the Texas Supreme Court ruled that when a trial court wrote in its final summary judgment order that, when it granted summary judgment to the employer, it had considered "the pleadings, evidence, and arguments of counsel," it essentially said it had considered the former employee’s one-day-late evidentiary response to Steak N Shake’s no-evidence summary judgment motion. The trial court’s recital was itself sufficient to demonstrate that the trial court considered all the evidence, including that attached to her late-filed response. Because the trial court’s language said it had considered the "evidence," "the court of appeals should have considered that evidence as well in its review of the trial court’s summary judgment," and since it did not, the state high court reversed and remanded the case to that court to consider the merits of the summary-judgment issues it outlined in its opinion (B.C. v. Steak N Shake Operations, Inc., March 27, 2020, per curiam).

No TCHRA preemption. The former Steak N Shake employee sued the restaurant and her former supervisor claiming he had sexually assaulted her while she worked there. Steak N Shake moved for summary judgment on traditional and no-evidence grounds, which the trial court granted. The court of appeals then held that the Texas Commission on Human Rights Act provided the exclusive remedy for the employee’s claims, but the Texas Supreme Court reversed, holding that "where the gravamen of a plaintiff’s claim is not harassment, but rather assault, as it is here, the [Act] does not preempt the plaintiff’s common law assault claim." The case went back to the court of appeals to consider Steak N Shake’s remaining grounds for summary judgment.

Other summary judgment grounds. Those grounds for summary judgment were (1) "whether, under its traditional motion for summary judgment, [Steak N Shake] established as a matter of law that [the employee’s] assault claim fits within a traditional exception to the Texas Workers’ Compensation Act," and (2) "whether, under the no-evidence motion, [the employee] produced more than a scintilla of evidence on each element of her claim." The court of appeals did not consider these grounds because it determined, instead, that the employee had "failed to file a timely response to the no-evidence motion, and the record does not show the trial court considered the late-filed response."

No evidence at all. As a result, the court of appeals declined to consider the evidence that Steak N Shake had attached to its combined motion, including the employee’s deposition testimony, because she had not filed a timely response and accordingly had not identified any fact issue raised by that evidence. The court of appeals did not consider the worker’s compensation bar at all. On rehearing en banc in the court of appeals, the employee for the first time argued that she had attempted to electronically file her response on the day it was due—including 461 pages of supporting evidence—but her filing was rejected because of a formatting error in one of her exhibits. She then re-filed her motion the next day, but she did not ask for court permission to file her response late. Steak N Shake timely filed a reply brief addressing the merits of her response; it also objected to the response as untimely. But there was no record of the hearing or of any ruling on the objection.

No-evidence motion. Under Texas law, a movant seeking a no-evidence summary judgment needs only to identify "one or more essential elements of a claim or defense . . . to which there is no evidence." The nonmoving party then has the burden to produce "summary judgment evidence raising a genuine issue of material fact." It if does not, it loses. Although the employee asserted that her response should relate back to her earlier, rejected electronic filing, the Texas Supreme Court agreed she had waived this argument by not raising it until the en banc rehearing.

Did trial court consider her evidence? As a result, the issue was no longer timeliness, but whether the trial court considered her untimely response in granting summary judgment against her. If the trial court had said nothing, the high court would have presumed that the trial court had not considered the late filing. But courts are required to examine the record to see if it contains an "affirmative indication" that the trial court permitted the late-filed response. Here, the state supreme court held that the trial court’s recital that it considered the "evidence and arguments of counsel," without any limitation, is an "affirmative indication" that the trial court considered the employee’s late response and the evidence attached to it—overcoming the presumption that the trial court had not considered it.

No ruling on timeliness objection. Steak N Shake never asked for a ruling on its objection to the timeliness of the employee’s response. The court said it had no basis to conclude the trial court did not consider all summary-judgment evidence on file when the motion was heard. Since the trial court recited that it had considered "the pleadings, evidence, and arguments of counsel," the court of appeals also should have considered that evidence when it reviewed the trial court’s summary judgment. As it did not, the state high court reversed and remanded to the court of appeals to consider the merits of the summary judgment issues it outlined in its opinion.

The case is No. 17-1008.

Attorneys: Matthew Ryan McCarley (Fears Nachawati) for B.C. Christopher Louis Kurzner (Kurzner PC) for Steak 'n Shake Operations, Inc.

Companies: Steak N Shake Operations, Inc.

Cases: Procedure EvidenceDiscovery CoverageLiability SexualHarassment TexasNews

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