FILED
15-0404
1/4/2016 6:59:32 PM
tex-8449374
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

NO. 15-0404
IN THE SUPREME COURT OF TEXAS
B.C.,

Petitioner,

v.
STEAK N SHAKE OPERATIONS, INC.,

Respondent

Appealed from the Fifth District Court of Appeals, Dallas Texas
No. 05-14-00649-CV

BRIEF OF AMICUS CURIAE, TEXAS RESTAURANT ASSOCIATION

JULIA F. PENDERY, ATTORNEY AT LAW
Julia F. Pendery
State Bar No. 15744050
3030 LBJ Freeway, Suite 1630, LB 50
Dallas, Texas 75234
972-243-1999 Telephone
972-243-8999 Facsimile
Julia@PenderyLaw.com
ATTORNEY FOR AMICUS CURIAE
TEXAS RESTAURANT ASSOCIATION

 TABLE OF CONTENTS
Page
TABLE OF CONTENTS .........................................................................................2
TABLE OF AUTHORITIES ....................................................................................3
INDENTITY OF AMICUS CURIAE ..................................................................... 4
SUMMARY OF ARGUMENT ............................................................................... 5
ARGUMENT ............................................................................................................6
I.

This Court addressed a sexual assault claim in the Waffle House
case and found it preempted by the Texas Commission on
Human Rights Act..................................................................................6

II.

The legislative balancing of employee and employer interests that
requires an employee to exhaust the administrative phase under
the TCHRA before proceeding in court would be destroyed by
exempting claims against employers that arise out of a sexual
assault.......................................................................................................9

A.

The Balance of Benefits to Employers and Employees under the
TCHRA.................................................................................................9

B.

The Ramifications of Excluding Sexual Assault Claims from
the TCHRA Administrative Process..............................................12

PRAYER ..................................................................................................................16
CERTIFICATE OF COMPLIANCE ....................................................................16
CERTIFICATE OF SERVICE ...............................................................................17

2

 TABLE OF AUTHORITIES
Cases

Page

Waffle House v. Williams, 313 S.W.3d 796 (Tex. 2010)

passim

Statutes
TEX. LABOR CODE §21.202 ....................................................................................11
TEX. LABOR CODE §21.210 ....................................................................................10
TEX. LABOR CODE §21.252(D) ..............................................................................12
TEX. LABOR CODE §21.256 ....................................................................................11
TEX. LABOR CODE §21.2585(d)(4) ..................................................................10, 11
TEX. LABOR CODE §21.259...............................................................................10, 11
TEX. PENAL CODE §22.01.................................................................................12, 15
TEX. PENAL CODE §22.011...............................................................................12, 15

3

 INTEREST OF AMICUS CURIAE
The fee for the preparation of this brief has been paid by the Texas
Restaurant

Association

(“TRA”),

a

non-profit

organization

with

approximately 5,000 members statewide. The association was established
in 1937 to be the advocate and indispensable resource in Texas for the food
service and hospitality industry. The Texas food service industry is a $40.8
billion business, employing more than one million people.
The TRA regularly counsels and advises member restaurants about
legal issues, legislation, labor and employment law, and other issues
relating to the regulation of the restaurant industry. It files this brief to
bring to the Court’s attention the impact on employers if the Court rules
that an employee may bypass the administrative process when seeking
compensation from the employer for a sexual assault alleged to have
occurred on the job. Such a bypass would significantly tilt the legislature’s
carefully-crafted balance of employee and employer interests in favor of
employees.

4

 SUMMARY OF ARGUMENT
The Court should not grant B.C.’s Petition for Review because it has
already addressed a claim against an employer based on a sexual assault
by the claimant’s co-employee and found the claimant could not avoid the
administrative phase of Chapter 21 of the Texas Labor Code when
attempting to recover damages from her employer. See Waffle House v.
Williams, 313 S.W.3d 796 (Tex. 2010).
In the five years since the Waffle House decision, the legislature has
not created an exception to the administrative phase requirement for sexual
assault claims. This Court should not do so now.
If the Court grants the petition, the TRA urges it to refrain from
creating a direct-lawsuit track for sexual assault cases that arise out of facts
that could give rise to a sexual harassment claim against an employer. Such
a ruling would destroy the balance of employer and employee interests
that the legislature carefully crafted in Chapter 21, also known as the Texas
Commission on Human Rights Act, (“TCHRA”).

5

 ARGUMENT
This Court addressed a sexual assault claim in the Waffle House
case and found it preempted by the Texas Commission on
Human Rights Act.

I.

Petitioner and the amici who support her have argued that this Court
addressed only a sexual harassment claim and a negligence claim in Waffle
House v. Williams, 313 S.W.3d 796 (Tex. 2010). 1 They argue that a sexual assault
claim is something different, and that it should be exempted from the
comprehensive legislative scheme of the TCHRA.

2

They fault the Court of

Appeals for “making no distinction between sexual harassment, which may
involve no touching at all, and the violent sexual assault which Steak N
Shake’s manager inflicted upon B.C.” 3 They attempt to distinguish Waffle
House by saying the offensive conduct there was merely “boorish behavior” or
“unwelcome touching.” 4

Petitioner’s Brief on the Merits at 13-14; Brief of Aid to Victims of Domestic
Abuse and the Texas Trial Lawyers Association at 11, 12
1

Petitioner’s Brief on the Merits at 13-14; Brief of Aid to Victims of Domestic
Abuse and the Texas Trial Lawyers Association at 12
2

Brief of Aid to Victims of Domestic Abuse and the Texas Trial Lawyers
Association at 6; See Petitioner’s Brief on the Merits at 15
3

Petitioner’s Brief on the Merits at 15; Brief of Aid to Victims of Domestic Abuse
and the Texas Trial Lawyers Association at 11-12; Brief of Texas Association Against
Assault, et al, at 15)
4

6

 These arguments ignore the fact that in Waffle House, the act for which
the plaintiff aimed to hold her employer vicariously liable was the coemployee’s sexual assault of her. Waffle House, 313 S.W.3d at 801. Because she
could not argue that the co-employee who pinned her arms, pressed his body
against hers, and rubbed her breasts was a vice principal of Waffle House, she
could not assert a common law claim for assault against Waffle House;
instead, she had to assert a claim based on negligent retention. Waffle House at
799. At trial, the jury found the co-employee had committed a sexual assault,
based on the Texas Penal Code definition of assault that was provided in the
jury charge. Waffle House at 801. The jury refused to find that Waffle House
ratified the conduct, but it did find Waffle House negligently supervised or
retained the assailant and awarded damages accordingly. Waffle House at 801.
In Waffle House, this Court carefully examined the issue of whether
claims against an employer based on a co-employee’s conduct must first go
through the TCHRA administrative process. In a seven-two decision, it found
the claim against the employer for vicarious liability based on a sexual assault
was “so entwined with” a complaint of sexual harassment

7

that it was

 required to be addressed first through the administrative process of the
TCHRA. Waffle House at 799. Although this Court noted in Waffle House that
the TCHRA does not foreclose an assault-based negligence claim arising from
independent facts unrelated to sexual harassment, such is not the case here. Id.
In this case, the conduct that forms the basis of Petitioner’s claim also gives
rise to a sexual harassment cause of action. Petitioner’s cause of action against
her employer is for an intentional tort that occurred on the work premises and
was perpetrated by a person whom she alleges was a vice principal of
Respondent. Petitioner’s tactical decision to forgo a claim for sexual
harassment should not cause this Court to weaken its Waffle House ruling and
put sexual assault claims against an employer on a separate track from sexual
harassment claims.
There have been three legislative sessions since Waffle House was
decided. The Texas Restaurant Association pays close attention to proposed
legislation introduced in the Texas Legislature, and, to its knowledge, no bill
to exempt stand-alone sexual assault claims against an employer from the
TCRHA administrative process has been heard, much less passed. If it had
been brought before the legislature, the TRA would have taken the
opportunity to address the issue with its elected representatives.
8

 II.

The legislative balancing of employee and employer interests
that requires an employee to exhaust the administrative phase
of the TCHRA before proceeding in court would be destroyed
by exempting claims against employers that arise out of a
sexual assault.
A. The Balance of Benefits to Employees and Employers Under
the TCHRA

This Court found in Waffle House that allowing the employee to pursue a
common law claim outside the TCHRA system, “would collide with the
elaborately crafted statutory scheme, a scheme that, as with the workers’
compensation regime, incorporates a legislative attempt to balance various
interests and concerns of employees and employers.” Waffle House at 803
(citation omitted). It said such a finding would effectively repeal the TCHRA
in sexual harassment cases where physical contact occurs. Waffle House at 812.
Petitioner argues that when this Court decided Waffle House, it did not
intend to decide that any employee’s claim for the intentional tort of sexual
assault committed by a vice principal of the employer falls under the
provisions of the Act. (Petitioner’s Brief on the Merits at 14) It urges this
Court to rule that claims of sexual assault against a vice principal proceed
entirely outside the administrative system, whether or not they are
accompanied by sexual harassment claims. (Petitioner’s Reply Brief at 9) This
9

 would destroy the balance inherent in the Act.
When the Act’s benefits to both the employer and the employee are
reviewed, some provisions benefit both sides. For example, the Act sets out a
quick and focused procedure in which knowledgeable professionals
investigate and analyze the claim. TEX. LABOR CODE §§ 21.201–21.210.
Some provisions of the TCHRA benefit only the employee. The
employee can represent herself.

Affirmative injunctive relief, such as

requiring promotion of the employee, is available. TEX. LABOR CODE §21.210.
If a claimant proceeds to court and hires a lawyer, she can recover attorney’s
fees and expert fees. TEX. LABOR CODE §21.259. These are remedies not
available under the common law. Waffle House at 806-07.
The damage cap primarily benefits the employer. The amount is scaled
to the number of employees, with a cap of $300,000 in non-compensatory
damages for a single claim against an employer with more than 500
employees. TEX. LABOR CODE §21.2585(d)(4). The cap gives employers some
predictability in addressing claims that arise in the workplace. However, it
may also benefit employees by allowing the employer to obtain insurance
covering such claims, which might otherwise be unavailable or not affordable.
The limitations provisions cut both ways. While the employee must file
10

 the claim with the Texas Workforce Commission within 180 days after the
allegedly unlawful employment action occurred, the two-year statute of
limitations for filing in court does not begin to run until the date of filing the
complaint, in effect giving a 2 ½ year statute of limitations on filing in court.
TEX. LABOR CODE §§ 21.202 and 21.256.
A simple chart shows the balancing of interests built into the Act.
Provisions that Primarily
Benefit Employee

Provisions that Benefit
Both Employee and
Employer

Provisions that Primarily
Benefit Employer

Claimant can represent
herself before the Texas
Workforce Commission

Expedited investigation
and resolution by
professionals
knowledgeable and
experienced in handling
such claims

Cap on most types of
damages, scaled according
to the number of
employees, with maximum
of $300,000
TEX. LABOR CODE §21.2585

Claimant can recover
attorney’s fees, expert fees,
and injunctive relief, which
are not available if the
claimant goes straight to
court. TEX. LABOR CODE
§21.259

Ability to solve the
problem without the
clashes, delays, and public
exposure inherent in the
judicial system

Predictability and
uniformity of the process
for addressing claims made
by employees

The employee’s 2-year
statute of limitations does
not begin to run until the
complaint is filed (up to 180
days after the alleged
unlawful employment
action) TEX. LABOR CODE
§21.256

The employee must file a
complaint with the Texas
workforce commission
within 180 days after the
alleged unlawful
employment action
occurred. TEX. LABOR CODE
§21.202

11

 Petitioner and the amici who support the granting of the petition argue
that allowing the Court of Appeals’ decision to stand would abolish common
law claims for violent assault and leave employees who are the victim of a
sexual assault by a co-employee without any remedy.5 However, except for
the damage cap, the Act takes no legal rights away from the employee. It
merely requires the employee to go through the administrative phase first.
Even if the Texas Workforce Commission does not find merit in the complaint
and does not issue a right to sue letter, the employee can still sue, having first
given the administrative process a chance to address the problem. TEX. LABOR
CODE §21.252(d).
B.

The Ramifications of Excluding Sexual Assault Claims from
the TCHRA Administrative Phase

It is common for an employee to allege both sexual harassment of a nontouching nature and acts involving various degrees of unwanted touching
which may invoke the definitions in Penal Code Sections 22.01( misdemeanor
assault) and 22.011 (felony sexual assault). The facts alleged in B.C.’s petition
could state a claim for sexual-harassment under the TCHRA as well as a claim

Brief of Aid to Victims of Domestic Abuse and the Texas Trial Lawyers
Association at 14.
5

12

 for sexual assault. If this Court finds the Waffle House decision excludes from
the TCHRA process claims of sexual assault based on acts that could also
constitute sexual harassment, a claimant can send one set of allegations down
the direct lawsuit path by alleging a certain degree of unwanted touching, but
send the no-touching or less-touching sexual harassment allegations through
the administrative system and see which fares better. This Court has said that
interpreting the statute to allow for simultaneous litigation would frustrate its
purpose. Waffle House at 799.
Petitioner’s proposed direct-lawsuit path for sexual assault claims
would create another dual-track dilemma. If the assaulting co-employee is not
a vice principal of the employer, to hold the employer liable for the acts of the
co-employee, a claimant must proceed against the employer on a negligent
hiring or retention basis. See, e.g., Waffle House at 800-01. If the co-employee of
the claimant was a vice principal (usually a fact question), the claimant can
seek to hold the employer directly liable for the intentional tort. Petitioner
seems to be asking this Court to carve out only claims against vice principals
for intentional torts, thus further fragmenting the current administrative
process.
Fragmentation of claims makes the process more expensive for the
13

 employer. As the process becomes more expensive and the damages more
unpredictable, employers become less able to hire employees or to increase
their wages. This dynamic is addressed by the balancing of interests built into
the TCHRA. It allows employers to set up a consistent system for handling
claims, which will increase predictability of the cost of claims. If this Court
takes certain types of claims out of the system, employers gain nothing, and
employees gain a potential new path directly to the judicial system, thus
upsetting the balance.
The possibility of the direct litigation path Petitioner advocates also
creates a practical problem for trial courts. To increase the impact of her
arguments, Petitioner says “there can be no dispute that Ventura’s mere
attempt to force B.C. to perform oral sex on him is a felony offense.” 6 The amici
assume that Petitioner’s case involves a felony sexual assault. 7 Petitioner’s
allegations, however, complain of conduct that seems to fall under the
misdemeanor assault statute, rather than under the felony sexual assault

Petitioner’s Brief on the Merits at 15, citing Texas Penal Code Section
22.011(a)(1)(B)(f) and 15.01(a)(d).
6

7

Brief of Texas Association Against Assault, et al, at 9)

14

 statute. 8 See TEX. PENAL CODE §§ 22.01 and 22.011. The TRA notes this not to
invite this Court to analyze B.C.’s allegations for the details of Mr. Ventura’s
alleged physical contact with her, but rather, to make the point that if this
Court takes the path urged by Petitioner, a trial court will be forced to do so.
To determine if it has direct jurisdiction over a claim such as B.C.’s, it will
need to examine the specifically-described unwanted touching that is pleaded,
to determine how much touching is enough to stay in court if the TCHRA
administrative process has been bypassed.
In examining the reasons to require a plaintiff such as Petitioner to
proceed first through the TCHRA process, the cause of action the employee
chooses to plead should not be the deciding factor. The fact that the employer
has been sued for conduct prohibited by the Act should be. The point of the
TCHRA is to attempt resolution of claims by employees against employers
quickly and without the expensive formalities and requirements of the judicial
system. See Waffle House at 803. That attempt should at least be required before
litigation.

8

(CR 296-98)

15

 Amicus Curiae, the Texas Restaurant Association, prays that this Court
deny B.C.’s petition for review. If the Court grants the petition, the Texas
Restaurant Association urges the Court to refrain from limiting the scope of
the TCHRA by allowing a plaintiff to assert a common law sexual assault
claim against an employer arising from acts that could constitute TCHRAactionable sexual harassment independently of the administrative process and
comprehensive legislative scheme of the TCHRA.
Respectfully submitted,
JULIA F. PENDERY, ATTORNEY AT LAW
/s/ Julia F. Pendery
Julia F. Pendery
State Bar No. 15744050
3030 LBJ Freeway, Suite 1630, LB 50
Dallas, Texas 75234
972-243-1999 Telephone
972-243-8999 Facsimile
Julia@PenderyLaw.com

16

 CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that, in accordance with Rule 9.4 of
the Texas Rules of Appellate Procedure, this Brief of Amicus Curiae
contains 3,040 words as determined by Microsoft Word 2010, which is the
software used to generate the document.
/s/ Julia F. Pendery
JULIA F. PENDERY
CERTIFICATE OF SERVICE
I certify that on January 4, 2016, I served a copy of this Brief of
Amicus Curiae Texas Restaurant Association via electronic service on
the following counsel:
Matthew J. Kita
Attorney for Petitioner
P.O. Box 5119
Dallas, TX 75208
(214) 347-7221 (facsimile)
matt@mattkita.com

17

 Christopher Kurzner
Attorney for Respondent
1700 Pacific Avenue, Suite 1870
Dallas, Texas 75201
ckurzner@kurzner.com
Gretchen S. Sween
Attorney for Amici Curiae
Texas Association Against Sexual Assault,
Safe Place, and Institute on Domestic Violence
& Sexual Assault at the Univ. of Texas at Austin
Beck Redden LLP
515 Congress Ave., Suite 1900
Austin, TX 78701
gsween@beckredden.com
James B. Lewis
Attorney for Amici Curiae
Aid to Victims of Domestic Abuse
and the Texas Trial Lawyers Association
24 Greenway Plaza, Suite 760
Houston, TX 77046
Peter M. Kelly
Attorney for Amicus Curiae
Attorney for Amici Curiae
Aid to Victims of Domestic Abuse
and the Texas Trial Lawyers Association
Kelly, Durham, & Pittard, L.L.P.
1005 Heights Blvd.
Houston, TX 77008
pkelly@texasappeals.com

/s/ Julia F. Pendery
JULIA F. PENDERY
18