Breaking and associated brands will be offline for scheduled maintenance Saturday May 8 3 AM US EST to 12 PM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Ralph J. Paul Jr., a distributor for Kirby, which distributes vacuums through in-home sales, recruited Carmello Rodriguez to start a separate distributorship in North Texas. Rodriguez hired Rheba Johnson as a dealer who would perform in-home demonstrations in Weatherford to sell vacuums. Rodriguez frequently subjected Johnson to unwanted physical touching and sexual comments during their work together. Johnson reported the incidents to Paul, but Paul did nothing. Johnson quit and filed a complaint with the Equal Employment Opportunity Commission, which issued a determination letter stating that Kirby was an employer within the meaning of Title VII of the Civil Rights Act of 1964, that the jurisdictional requirements for Johnson’s suit had been met and that Johnson had suffered sexual harassment. Johnson sued Rodriguez, Kirby and others for sexual harassment, negligence, assault, battery and intentional infliction of emotional distress. The trial court granted a directed verdict for Kirby. After a jury verdict, the trial court rendered judgment against Rodriguez. Johnson appeals the directed verdict for Kirby. HOLDING:Affirmed. Johnson argues that there is some evidence that Kirby was an employer for purposes of her claims under the Texas Commission on Human Rights Act. Like Title VII, the TCHRA protects employees, not independent contractors, the court explains. And here, Kirby did not have the right to hire and fire dealers like Johnson. Nor did it have the right to supervise her or set her work schedule; those were Rodriguez’ responsibilities. The EEOC letter stating that Kirby was an employer was merely conclusory, the court finds, because it did not outline the evidence on which it relied. The conclusory statement had “no probative force,” the court rules. If Kirby is not an employer, Johnson asserts that she has standing to sue under NME Hospitals Inc. v. Rennels, 994 S.W.2d 142 (Tex. 1999), which gives those without direct employer-employee relationships the ability to sue under the TCHRA if 1. the defendant is an employer within the statutory definition of the act; 2. some sort of employment relationship exists between the plaintiff and the third party; and 3. the defendant controlled access to the plaintiff’s employment opportunities and denied or interfered with that access based on unlawful criteria. Again, the court holds there is no evidence of probative force to show that Kirby employed Johnson. The court then rejects Johnson’s argument that, even in the absence of an employer-employee relationship, Kirby owed her a duty to use reasonable care to prevent, eliminate, and provide reporting mechanisms for sexual harassment within its selling hierarchy. Though acknowledging that such liability exists in Texas law, the court holds that it does not apply in this context. Kirby did not control the details of its subcontractors’ work and any possible control it did have was not related to the injury-producing activity. Unlike in the in-home sales requirement in Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998), where Kirby was found to owe a duty to protect consumers from sexual assault in their homes by Kirby demonstrators, Kirby did not contractually retain control over preventing, eliminating or providing reporting mechanisms for sexual harassment within its selling hierarchy. Finally, the court rules that Rodriguez was not a vice-principal of Kirby. Rodriguez’ agreement was with Paul, not Kirby. His power was limited to hiring in-home demonstrators; he did not have the power to hire or fire other distributors as Paul did. Like Johnson, Rodriguez was an independent contractor. OPINION:Walker, J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.