Doctors and clinics sued anti-abortion activist group Operation Rescue for invasion of privacy, tortious interference, and civil conspiracy. Anti-abortion activists planned to picket and obstruct abortion clinics and homes of physicians who worked for the clinics to coincide with the 1992 Republican National Convention. The district court granted a permanent injunction to restrict anti-abortion demonstrations, which prohibited activists from, among other things, demonstrating within specified areas of each clinic. Operation Rescue appealed. Pursuant to free speech principles, the Court held that the injunction must burden no more speech than necessary to serve a significant government interest. The Court upheld the injunction as it related to physicians’ homes, but found the injunction overbroad because it limited peaceful communication within speech-free zones, such as peaceful sidewalk counseling and prayer. The Court modified the injunction, allowing no more than two demonstrators within a zone. These two demonstrators may individually sidewalk counsel patients in a normal speaking voice, but must retreat when the patient or physician verbally indicates that they wish to be alone. Otherwise, the lower court’s judgment was affirmed.
Women and Justice: Jurisdiction
Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas Supreme Court of Texas (1998)
In re: Jane Doe Supreme Court of Texas (2000)
A pregnant minor applied for judicial bypass to have an abortion without notifying her parents. The trial court denied her application, finding that she was neither mature nor well-informed enough to consent to an abortion without parental notification. The Supreme Court reversed, finding that Doe showed that she was sufficiently well-informed. The trial court specifically denied Doe’s application because she was allegedly unaware of the intrinsic benefits of alternatives to abortion such as parenting and adoption. The Supreme Court held that even though a minor may not share the court’s views about what the benefits of her alternatives might be, it does not follow that she has not thoughtfully considered her options or acquired sufficient information about them. The Court noted that she had read about abortion, spoken to women who have had abortions, and discussed potential mental effects with a counselor. Moreover, she expressed that she was not ready for parenthood and that keeping the child would prevent her from going to college or having a career. The Supreme Court thus reversed the trial court and granted Doe’s judicial bypass, holding that when a minor has established that she has engaged in a rational and informed decision-making process and concluded that realistic concerns foreclose her alternatives, she cannot be denied the statutory bypass for failing to list general benefits seen by others.
In re Doe Supreme Court of Texas (2002)
Pregnant minor filed an application for judicial bypass to receive an abortion without notifying her parents. The district court did not rule on the application or make findings of fact, but issued a writing that sua sponte concluded that the parental bypass law was unconstitutional. Doe appealed due to uncertainty about the judgment, and the court of appeals dismissed for lack of jurisdiction. The Supreme Court held that because the judge did not issue findings of fact within two business days, her application was deemed granted.
In re: Jane Doe 10 Supreme Court of Texas (2002)
A pregnant minor applied for judicial bypass to have an abortion without notifying her parents. The trial court denied the application on a form, but made no ruling and no findings of fact on one of the bases for judicial bypass—whether notifying her parents would lead to physical, sexual, or emotional abuse of the minor. Under the Texas Family Code, the court was required to issue a ruling and written findings of fact and conclusions of law within two business days after the application was filed. Doe argued that because the trial court did not comply with the Family Code, she was denied a timely and complete judgment, and her application should be deemed granted. The Supreme Court agreed, deeming her application for judicial bypass granted based on possible abuse.
Bell v. Low Income Women of Texas Supreme Court of Texas (2002)
Physicians and clinics sued the Commissioner of Health sued, claiming that Texas Medical Assistance Program’s (“TMAP”) abortion funding restrictions for indigent women violated their constitutional rights under the Equal Rights Amendment and Equal Protection Clause of the Texas Constitution, and their rights to privacy. TMAP was prohibited from authorizing abortion services without matching federal funds. The relevant federal law, the Hyde Amendment, prevented TMAP from funding abortions unless the pregnancy resulted from rape or incest, or placed the woman in danger of death. The plaintiffs argued that the restriction constituted sex discrimination because the state funded virtually all medically necessary services for men while refusing to fund abortions that are medically necessary even though the woman is not at risk of death. The Supreme Court held that although any restriction related to abortion would only affect women, TMAP’s restriction was not “on the basis of sex,” but rather due to the nature of abortion as a medical procedure involving potential life, which has no similar treatment method. The Court noted that other than medically necessary abortions, TMAP funded virtually all other medical treatment for women, and funded abortions to the extent that matching federal funds were available. The Court held that the discouragement of abortion through funding restrictions cannot, by itself, be considered purposeful discrimination against women as a class. The Court recognized the state’s interest in encouraging childbirth over abortion and held that the right to choose an abortion does not translate into a state obligation to subsidize abortions. The Court thus held that the funding restrictions did not violate the Texas Constitution, reversing the Court of Appeals and entering judgment for the defendant.
Hoffman-La Roche Inc. v. Zeltwanger Supreme Court of Texas (2004)
The plaintiff-respondent worked as a sales representative for Hoffman-La Roche Inc, the defendant-petitioner. The respondent alleged that her supervisor told sexually inappropriate jokes and asked inappropriate questions on multiple occasions. She submitted complaints to Human Resources, which began an investigation. During the respondent’s performance review, her supervisor yelled at her and repeatedly criticized her performance, giving her a below average rating. Shortly afterwards, the petitioner fired both the respondent’s supervisor and the respondent. The respondent then filed a complaint for sexual harassment with the Texas Commission on Human Rights. At issue for the Supreme Court was whether the respondent could recover damages for emotional distress due to sexual harassment under the Texas Commission on Human Rights Act and common tort law. The Court of Appeals held that the respondent could recover under both statutory and common law, awarding damages. The Texas Supreme Court reversed, holding that when the complaint is for sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent tort claim for intentional infliction of emotional distress. The Court found that the respondent could not identify additional extreme and outrageous conduct by the petitioner to support an independent intentional infliction of emotional distress claim. The Court reversed the judgment of the court of appeals and remanded to the trial court.
San Antonio Water System v. Nicholas Supreme Court of Texas (2015)
The petitioner claimed that she was terminated from her position because she confronted a male vice president about his repeated lunch invitations to two female employees outside his department. The Texas Supreme court held that no reasonable person could have believed the invitations gave rise to an actionable sexual harassment claim. Accordingly, the Court held the petitioner did not engage in a protected activity under the Texas Commission on Human Rights Act when she confronted the vice president about his behavior. The Court reversed the lower court and dismissed the claim.
Texas prohibits pregnant unemancipated minors from obtaining abortions unless the physician performing the abortion gives at least 48 hours actual notice of the appointment, in person or by telephone, to the minor’s parent, managing conservator, or guardian. If the parent or guardian cannot be notified after a reasonable effort, the physician may perform the abortion after giving 48 hours constructive notice by certified mail to the guardian’s last known address. A minor may obtain an abortion without parental notification if the minor receives a court order authorizing the minor to consent (judicial bypass), or if the physician finds a medical emergency, certifies the medical emergency in writing to the Department of State Health Services, and notifies the parent of the medical emergency. If a physician intentionally performs an abortion without complying with this code, the offense is punishable by a maximum fine of $10,000.
Tex. S. Univ. v. Rodriguez Court of Appeals of Texas – Houston Division (2011)
Lisa Rodriguez was a patrol officer at Texas Southern University (“TSU”) who alleged that her supervisor sexually harassed her by making sexual innuendos, making inappropriate remarks, commenting on her physical attractiveness, asking about the color of her undergarments, and keeping a picture of her on his desk. Eventually, Ms. Rodriguez filed a charge form with the Texas Workforce Commission Civil Rights Division (“TWC”) alleging, among other things, 13. In the charge form, she alleged that the 13 began a week after she was hired, and had continued until as recently as four months before filing the TWC complaint. As a defense, TSU claimed Ms. Rodriguez had failed to meet the 180-day deadline for filing the complaint. In Texas, a complaint under the Texas Labor Code for 13 (a type of sex discrimination) must be filed “not later than the 180th day after the date the alleged unlawful employment practice occurred.” Tex. Lab. Code Ann. § 21.202(a). TSU argued that because Ms. Rodriguez only documented 13 at the beginning of her employment, the 180-day deadline had passed. However, the court recognized there are two types of 13—quid pro quo and hostile work environment. “Quid pro quo harassment occurs when employment benefits are conditioned on sexual favors, while a hostile work environment is the result of 13.” Since Ms. Rodriguez’s claim was of a hostile work environment, the “continuing violation doctrine” applied since the “unlawful employment practice manifest[ed] itself over time, rather than as a series of discrete acts.” Since Ms. Rodriguez alleged “a series of related acts, one or more of which [fell] within the limitations period,” the complaint was timely filed and the appellate court found that it had jurisdiction over the case.
Wilkerson v. Wilkerson Court of Appeals of Texas – Houston District (2010)
Linett Wilkerson was the widowed third wife of James Wilkerson. Dennis Wilkerson was James’s adult son from his first marriage. After her husband died, Linett explained to Dennis that she intended to help run one of the family businesses, a golf course. Dennis became furious. told Linett that she had no business in the golf course, and instructed her to follow him outside where he pulled a gun out and shot some soda cans, telling Linett that he was “a good shot” and “I never miss” and that he “always [had] plenty of ammunition.” On another occasion he told Linett not to “get in his way” or “something would happen” to her. After Dennis repeatedly refused Linett’s attempts to obtain financial information about the business in order to probate James’s estate, Linett filed a lawsuit. Williams, a friend of Dennis’s, came to Linett’s house twice and threatened her and her children. The trial court issued a family violence protective order against Dennis on behalf of Linett and her children. Dennis asserted that it was not an appropriate case for the issuance of a family violence protective order because “Linett and Dennis have never shared a household” and their family relationship was “attenuated” since she was his father’s third wife. The court held that their relationship was one of family under section 71.004(1) of the Texas Family Code, since Linett and Dennis were related by affinity and Dennis and Linett’s children were half-siblings. In other words, step-families fall within the “family violence” provisions of the Code even where they do not share a household. Moreover, the evidence was legally and factually sufficient for issuance of the protective order.
Harvill v. Rogers Court of Appeals of Texas – Tyler Division (2010)
Molly Harvill sued her fellow employee, Oscar Rogers, for sexual assault and battery and intentional infliction of emotional distress. Ms. Harvill alleged that Mr. Rogers grabbed and kissed her, shot rubber bands at her breasts, and rubbed against her at work after repeated requests for him to stop. The trial court entered summary judgment in favor of Mr. Rogers because Ms. Harvill didn’t allege damages as a result of the sexual assault. However, the appellate court reversed on this count, recognizing that no actual damages are required for an allegation of sexual assault. All that is required is that a person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code. § 22.01(a)(3). The court recognized that bodily injury is not required and damages for mental suffering are recoverable without an actual physical injury.
O’Dell v. Wright Court of Appeals of Texas – Fort Worth Division (2010)
Rebecca Wright was a waitress at Arlington Steakhouse, Inc. for four months. She alleged that during this time, her supervisor, Christopher O’Dell, made lewd sexual comments to her, touched her in sexual ways that she found offensive, and created a hostile work environment by his 13. Specifically, Ms. Wright alleged O’Dell put his fingers down her blouse and in her pants and brushed up against her, offered to pay her for oral sex, verbally degraded her and the other waitresses, and made inappropriate comments about her physical appearance. The jury trial resulted in a verdict for Ms. Wright on all claims, finding O’Dell assaulted her, Ms. Wright was constructively discharged, and was subjected to 13. The jury award was for $175,000 in mental anguish damages for assault and $250,000 in mental anguish damages for 13. O’Dell appealed this decision on many grounds, one of which was that the award of damages was unsupported and violated the statutory cap on damages for employers with less than 500 employees. The appellate court affirmed, recognizing that mental anguish damages require a plaintiff introduce “direct evidence of the nature, duration, and severity of her mental anguish, thus establishing that there was a substantial disruption of her daily routine.” The requirement is a “high degree of mental pain and distress” and must be more than “mere worry, anxiety, vexation, embarrassment or anger.” Direct evidence must be shown of this and the evidence shown must justify the amount awarded to be affirmed on appeal. The court found Ms. Wright presented sufficient evidence at the trial since she experienced severe anxiety, clenched her jaw, held her breath, at times felt paralyzed and nauseous, and had nightmares of her attacker, O’Dell. In addition, the appellate court found the amount was fair and reasonable since the jury considered the “disruption in her life and personal toll taken by the events surrounding the assault and 13.” The court also found that the statutory cap provided in Texas Labor Code Section 21.2585 (capping damages based on the size of the employer) did not apply because the burden was on the defendant to plead and prove this defense, it was not an automatic cap.
East Tex. Med. Ctr. EMS v. Nieves Court of Appeals of Texas – Waco Division (2010)
Kathy Nieves sued her co-worker, Jeremy Cox, for sexual assault and sued her employer, East Texas Medical Center EMS (ETMC) for, among other things, 13. Ms. Nieves was an EMT and Mr. Cox a paramedic who would work shifts with Ms. Nieves. Ms. Nieves alleged sexual assault by Mr. Cox, arguing that he had subjected her to forced sexual contact at her apartment, and 13 during the work shift when Mr. Cox allegedly tried to hold her hand and have other unwanted contact while at work. Texas recognizes that a person commits assault if he (1) intentionally, knowingly or recklessly cause bodily injury to another, (2) intentionally or knowingly threaten another with imminent bodily injury, or (3) intentionally or knowingly cause physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative. The jury was instructed that “sexual assault is without the consent of the other person if (1) the actor compels the other person to submit or participate by the use of physical force or violence, (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat, or (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist.” The jury trial handed down a verdict for Ms. Nieves on all claims and substantial damages for past and future physical pain and mental anguish. Mr. Cox and ETMC both appealed the jury verdict, though ETMC ended up settling the claims against it. The appellate court affirmed the trial court’s order, recognizing the important role of the jury in determining which “side of the story” is more credible and whom to believe. In this type of case, a court must consider the “entire context, circumstances, conversations, writings, acts, and relationships between the parties” in determining whether to reverse the trial court. Here, the appellate court found there was sufficient evidence for the trial court outcome and that the jury’s verdict was not unreasonable.
Spring v. Walthal, Sachse & Pipes, Inc Court of Appeals of Texas – San Antonio Division (2010)
An insurance agency, Walthall, Sachse & Pipes, Inc., brought suit against its former employee, Rosemary Spring, for opening a competing insurance agency in violation of her non-compete agreement. Ms. Spring then brought several counterclaims against her former employer, including claims for 13 under the Texas Labor Code and Title VIII of the Civil Rights Act of 1964 and assault by her supervisor, Mr. Sachse. She alleged that he pushed her head into his hip, thrust his buttocks into her pelvic area and grinded against her while laughing, and kissed her cheek and neck. The trial court entered summary judgment against Ms. Spring on all counts and she appealed. The appellate court held that Ms. Spring failed to plead a prima facie case for 13. To plead 13 under a hostile work environment theory, a plaintiff must establish: (1) she is a member of a protected class, (2) she was the victim of uninvited 13, (3) the harassment was based on sex, and (4) the harassment affected a “term, condition, or privilege” of her employment. The appellate court recognized that for the conduct to be actionable, she must show “the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile or abusive working environment.” The 13 must be sufficiently severe or pervasive such that to a reasonably objective third person the conduct created an “abusive working environment.” Despite her allegations, the court looked at other similar cases where the harassment was even more severe and found that the conduct didn’t rise to “such severe or pervasive 13 that would create a hostile or abusive work environment as to affect a term, condition, or privilege of employment of a reasonable person in Spring’s position.” However, the court did reverse the entry of summary judgment on the assault claim. Conduct can be actionable as civil assault when it doesn’t rise to the level of discrimination under the Texas Labor Code and Title VII of the Civil Rights Act of 1964. To allege assault, Ms. Spring must have shown Mr. Sachse intentionally or knowingly caused physical contact with her when he knew or should have known she would regard the contact as offensive or provocative. Ms. Spring presented testimony of a co-worker who corroborated the contact in the elevator. The other two incidents both involved physical contact. Since reasonable minds could differ on whether the unsolicited physical contact was offensive or provocative, the court reversed on the assault claim.
Clements v. Haskovec Court of Appeals of Texas – Corpus Cristi-Edinburg District (2008)
Ira Clements lived with his elderly wife, Helen, who had been diagnosed with Alzheimer’s disease. Their daughter, Linda, believed that her father was abusing her mother. When Linda arrived at the family home with the intention of removing her mother from Ira’s home, Ira grabbed Linda by her hair and drew back his fist as though he would hit her. As Helen tried to sneak out of the house, Ira grabbed her arm and pulled her back into the house. When police officers arrived to investigate, Ira admitted to them that he grabbed Linda’s hair and stated that he “should have beat the hell out of [Linda]”; Linda was visibly nervous and shaken and reported to the officer that she feared for her life. A “family violence” protective order issued against Ira behalf of Helen, Linda, and Linda’s husband pursuant to section 71.004 of the Texas Family Code. Ira challenged the protective order on the grounds that (i) his conduct did not constitute “family violence” under the Code and (ii) there was no threat that family violence would likely occur in the future. As to Ira’s first argument, the court held that Ira’s behavior fit the definition of “family violence” even though he never actually struck his wife or daughter because he put a family member “in fear of imminent physical harm, bodily injury, [or] assault.” The protective order was legally sufficient because Linda, her sister, and two police officers testified that Ira grabbed Linda’s hair and drew back his fist as if he would hit her, and, that Ira had repeatedly threatened Helen and made her fearful—thus, there was not a complete absence of vital fact and the evidence amounted to more than a “mere scintilla.” As to Ira’s second argument, the court held that there was sufficient evidence for the finding that family violence would likely occur in the future. In so finding, the court explicitly extended to family violence protective order cases the well-settled family law principle that evidence a person has engaged in abusive or neglectful conduct permits an inference that the person will continue this behavior in the future.
Vongontard v. Tippit Court of Appeals of Texas – Houston District (2004)
Gregory Vongontard and Misty Tippit broke up after two-and-a-half years of dating. After the break-up, Gregory began threatening Misty by backing her into walls and corners, calling her names, throwing house keys at her as she attempted to return them to him, calling her numerous times and demanding to know where she was and who she was with, and threatening to “kill the guy” she was dating. Misty also testified that Gregory had been physically violent on three occasions while they were dating (trying to hit her, pushing her against a wall, and pushing her to the ground). A “dating violence” protective order issued against Gregory pursuant to the Texas Family Code, sections 71.001 to 87.004. Gregory contended that the evidence was insufficient to show that he committed dating violence against Misty. The court held that there was “more than a scintilla” of evidence of past violence since the evidence showed that Gregory had thrice pushed Misty, putting her in fear of imminent physical harm. The court further held that the finding of future incidents of dating violence was likewise supported by sufficient evidence since Gregory had continued to threaten Misty post-break-up.
B.C. v. Rhodes Court of Appeals of Texas – Austin District (2003)
T.L.R. was an eighth-grader at the Texas School for the Deaf and was dating B.C., also an eighth-grader at the School. After about two months of dating, B.C. approached T.L.R. and told her he wanted to have sex with her; she responded “no” twice and tried to get away from him by entering the girls’ restroom. B.C. followed her into the restroom. T.L.R. told him “I don’t want this” but B.C. took her clothes off, took his clothes off, told her to lie down on the floor, and penetrated her. T.L.R.’s father sought and obtained a protective order against B.C. on behalf of his daughter. B.C. argued that, because T.L.R. was a minor, the court was without jurisdiction to issue the protective order, claiming that only an adult member of a dating relationship is entitled to seek a protective order for dating violence. The court held that, under sections 71.004 and 82.002 of the Texas Family Code, any adult may apply for a family violence protective order to protect a child from “dating violence.” Moreover, the evidence was legally and factually sufficient to support the protective order: T.L.R. twice told B.C. “no” and did not help him undress her, and, B.C. sent a hostile message to her.
Menefee v. McCaw Court of Appeals of Texas – Dallas Division (2003)
Sherri Menefee filed an employment sex discrimination and retaliation case against her employer, McCaw Cellular. Sherri was hired as the manager of the IT department for the company’s southwestern region. She alleged that her boss discriminated against her and that she was subjected to a less favorable environment based on her sex and was terminated shortly after complaining about the discrimination. Under the Texas Commission on Human Rights Act (Texas Labor Code § 21.051(1)), an employer commits an unlawful employment practice if, because of sex, the employer discriminates in any manner against an individual in connection with compensation or the terms, conditions, or privileges of employment. The Act is modeled after the federal Title VII and therefore Texas courts may look not only to cases involving the state statute but also to cases interpreting the analogous federal provisions. In discrimination cases based upon circumstantial evidence, the plaintiff must first establish a prima facie case by showing: (1) she was a member of the protected class, (2) she was qualified for the position she held, (3) she was discharged or suffered an adverse employment action, and (4) she was replaced with a person who is not a member of the protected class or she was otherwise treated differently from persons outside the protected class. Once the plaintiff makes this “minimal” showing, the burden of production shifts to the employer to produce evidence that the plaintiff was terminated for a legitimate, nondiscriminatory reason. Then the plaintiff must establish that the legitimate reason was a “pretext” by showing that a discriminatory motive move likely motivated the employer’s decision, such as through evidence of disparate treatment or that the employer’s explanation is unworthy of credence. In this case, Sherri established a prima facie case, and McCaw met its burden by producing evidence that Sherri was fired because she was not a “good fit” for her team. Sherri sufficiently evidenced that this reason for her termination was a pretext because the reason she could not create a cohesive team was due to the discriminatory conduct and disruptive behavior of her boss and the failure of her supervisors to take action when she complained; moreover, she presented evidence that she had been told she was doing a good job. Thus, Sherri sufficiently raised a factual issue to survive summary judgment.