                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                          No. 04-11-00879-CV

                                    Maria Elena MARTINEZ,
                                            Appellant

                                                  v.

                                     AA FOUNDRIES, INC.,
                                          Appellee

                     From the County Court at Law No. 3, Bexar County, Texas
                                     Trial Court No. 352947
                          Honorable David J. Rodriguez, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: January 30, 2013

AFFIRMED

           Maria Elena Martinez sued her employer, AA Foundries, Inc., under Chapter 21 of the

Texas Labor Code, alleging claims for hostile work environment and retaliation. See TEX.

LABOR CODE ANN. §§ 21.051, 21.055, 21.125 (West 2006). The jury found against Martinez on

her claims, and the trial court rendered a take-nothing judgment in favor of AA Foundries. We

affirm the judgment of the trial court.
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                                          BACKGROUND

       Martinez began working as a secretary at AA Foundries in 2000. In addition to her office

duties, she was required to perform other duties such as cleaning the men’s and women’s

restrooms during working hours. James Gregory Jones was also employed by AA Foundries and

began working there in 2002. In 2005, Jones left AA Foundries after he was arrested for sexual

assault; Jones returned to AA Foundries in November 2007 after being released from prison on

parole. According to Martinez, Jones began propositioning her and making offensive remarks to

her. Jones told Martinez he was going to kidnap her and take her to Las Vegas so they could get

married. He also told Martinez not to gain too much weight so that he could carry her over the

threshold. Knowing that Jones had twice been convicted of sexual assault and was a registered

sex offender, Martinez began to fear for her life and safety.

       In early 2008, Martinez took a three-month medical leave of absence. During this time,

Jones continued to harass Martinez by stalking her at her residence, which is located across the

street and down the block from AA Foundries. Martinez would see Jones lurking outside her

house early in the morning after her husband left for work. Shortly after Martinez returned to

work in May 2008, Jones approached Martinez in the building’s narrow corridor while she was

taking out the trash and stroked her hair. No one else was present, and Martinez stated that Jones

looked at her eerily.

       On Friday, May 16, 2008, Martinez complained to her supervisor, Ronnie Hunt, that she

feared Jones. Martinez informed Hunt that Jones was “stalking her house,” and that he told her

he wanted to kidnap her and take her to Las Vegas. Hunt interrupted Martinez and said that he

would take care of it. The following Monday, Hunt told Martinez he needed to talk to her and

began yelling at her about her personal life. When Martinez asked him about Jones, Hunt replied

that Jones was just trying to be a friend. Martinez became very upset and went home; she
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returned during lunch, however, and asked Hunt for Jones’ parole officer’s name and number.

Hunt told Martinez to look it up herself.

       Martinez stated that after she complained to Hunt on May 16, “everything started to

deteriorate,” and the harassment and intimidation in the workplace worsened. Co-worker Leroy

Beal urinated in front of Martinez while she was servicing the men’s restroom. Martinez

complained to Hunt, but he just laughed and turned away. Martinez was also offended by male

co-workers grabbing their crotches in front of her, sexually explicit jokes and cartoons left on her

desk, the sale of pornographic DVDs within the workplace, and co-workers giving her the “silent

treatment” and dirty looks.

       After complaining to Hunt, Martinez contacted Jones’ parole officer; Martinez told her

that Jones was stalking her and had threatened to kidnap her and take her to Las Vegas. A

warrant was immediately issued for Jones’ arrest, and he was held in jail pending a parole

revocation hearing. Martinez was subsequently subpoenaed to testify at Jones’ parole revocation

hearing. When Martinez asked Hunt for time off to testify at the hearing, he told her that she

needed to stay and answer the phones. On July 31, 2008, Martinez took a medical leave of

absence and never returned to work. On August 5, 2008, she attended Jones’ parole revocation

hearing and was surprised to see Hunt and three other co-workers there. Although Jones’ parole

was revoked at the hearing, he was released from jail on the condition that he not have contact

with Martinez. Martinez submitted her letter of resignation on August 7, 2008. Martinez

subsequently filed a gender discrimination and retaliation complaint with the Equal Employment

Opportunity Commission and the Texas Workforce Commission-Civil Rights Division, as well

as a lawsuit against AA Foundries alleging claims for hostile work environment and retaliation.

       At trial, Martinez’s supervisor, Ronnie Hunt, testified that Martinez complained to him

about workplace harassment only once, on May 16, 2008. According to Hunt, Martinez told him
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Jones was stalking her and threatened to kidnap her and take her to Las Vegas. Hunt wrote a

report documenting the complaint. Although Hunt did not take the kidnap threat seriously, he

“checked it out” with Jones nonetheless. Hunt stated that on the following Monday, he “talked

to all the guys that stood outside every morning with . . . Jones smoking cigarettes and bull

crapping. None of them said he even left the place.” Hunt asked the men if they had ever seen

Jones leave AA Foundries and go to Martinez’s house and they said “no.” Hunt next confronted

Jones. Jones denied stalking Martinez and told Hunt he had only been to her house one time,

when he and his wife brought her food when she was out on medical leave. Hunt told Jones to

stay away from Martinez. When Hunt talked to Martinez later that day, he told her to keep her

love life out of his foundry, even though Hunt had no reason to believe that Martinez and Jones

were involved in an affectionate relationship.

       Hunt denied forbidding Martinez to attend the parole revocation hearing, stating that he

merely denied her request to take time off to prepare for the hearing. Hunt stated that, in his

opinion, “if you tell the truth, you don’t need time to prepare.” Regarding the pornographic

DVDs in the office, Hunt stated that employee Juan Montoya, whom Martinez dated for several

years while separated from her husband, had them mailed to work; Hunt found out and told Juan

he did not want the DVDs sent to work.

       According to Hunt, Martinez encouraged the male workers to talk with her. Hunt also

presumed that Martinez was a prostitute because employee Bruno Montoya told Hunt that he

gave Martinez $100 and “she just performed $50 of it.” Hunt did not question Martinez about

the $50, but noted in his report documenting the Jones complaint that Martinez owed $50 to

Montoya.

       Bruno Montoya, Martinez’s co-worker, testified that he never saw Jones leave AA

Foundries and go to Martinez’s house and never witnessed Martinez being subject to harassment
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or intimidation in the workplace.      Montoya further stated he and Martinez had a sexual

relationship and frequented motels while working at AA Foundries. He stated their arrangement

continued until right before Martinez stopped working at AA Foundries. Montoya also testified

he paid Martinez money in exchange for sex.

       At the close of trial, the following liability questions were submitted to the jury:

       (1) Was sex a motivating factor in AA FOUNDRIES, INC.’S decision to
           discharge MARIA ELENA MARTINEZ?
       (2) Was MARIA ELENA MARTINEZ subjected to a “hostile work
           environment”?
       (3) Did AA FOUNDRIES, INC. discharge MARIA ELENA MARTINEZ
           because of MARIA ELENA MARTINEZ’S opposition to a discriminatory
           practice, making or filing a charge of discrimination, or filing a complaint?

The jury answered “no” to each question. In accordance with the jury’s verdict, the trial court

rendered a take-nothing judgment in favor of AA Foundries. Martinez filed a motion for

judgment notwithstanding the verdict and/or new trial, which was denied by the trial court after a

hearing. Martinez now appeals.

                                           DISCUSSION

       Martinez raises three issues on appeal, arguing that the trial court erred in instructing the

jury and in excluding evidence, and that the evidence is insufficient to support the jury’s finding

that she was not subjected to a hostile work environment.

Charge Error

       In her first issue, Martinez argues the trial court erred by impermissibly restricting the

time period within which the jury could consider events as having created a hostile work

environment for Martinez. We review a trial court’s decision to submit or refuse a particular

jury instruction for an abuse of discretion. Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012).

“An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds

support in the pleadings and evidence.” Id. (quoting Columbia Rio Grande Healthcare, L.P. v.
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Hawley, 284 S.W.3d 851, 855–56 (Tex. 2009)). Charge error is harmful if it probably caused an

improper judgment or probably prevented the appellant from properly presenting her case to the

appellate court. Thota, 366 S.W.3d at 687. “Charge error is generally considered harmful if it

relates to a contested, critical issue.” Id. (quoting Hawley, 284 S.W.3d at 856).

        Here, the trial court instructed the jury that “[t]he only relevant time period to be

considered by the jury is from May 16, 2008, the day that MARIA ELENA MARTINEZ first

gave notice to AA FOUNDRIES, INC. that she had any complaints or concerns about sexual

harassment until July 31, 2008, her last day working for AA FOUNDRIES, INC.” On appeal,

Martinez contends that there is some evidence that events after July 31, 2008 contributed to the

hostile work environment at AA Foundries, and thus the jury should have been permitted to

consider those events. Specifically, she asserts that the evidence shows that she was “deeply,

negatively affected by the appearance of Ronnie Hunt and several of her co[-]workers at the

parole revocation hearing testifying for . . . Jones, which occurred two days before her

constructive termination” on August 7, 2008. She further argues that “[i]t can reasonably be

inferred from [her] coworkers’ adverse testimony at trial that their testimony at the parole

hearing was favorable to . . . Jones . . . .” and that this “last straw” forced her to resign.

        At trial, Martinez’s only objection to the charge was that the jury was not permitted to

consider events occurring prior to May 16, 2008. The trial court overruled that objection and no

further charge objections or requests were made by Martinez. Because Martinez did not object

on the basis on which she now appeals—that the jury should have been allowed to consider

events occurring after July 31, 2008 in determining whether Martinez was subjected to a hostile

work environment and retaliation—we conclude Martinez has waived this issue on appeal. See

TEX. R. CIV. P. 274 (“A party objecting to a charge must point out distinctly the objectionable

matter and the grounds of the objection. Any complaint as to a[n] . . . instruction, on account of
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any defect, omission, or fault in pleading, is waived unless specifically included in the

objections. . . . No objection to one part of the charge may be adopted and applied to any other

part of the charge by reference only.”); see also Cruz v. Andrews Restoration, Inc., 364 S.W.3d

817, 831 (Tex. 2012) (aggrieved party “can complain on appeal only if it made the trial court

aware, timely and plainly, of the purported problem and obtained a ruling”); State Dept. of

Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241(Tex. 1992) (same).

       Even if we were to assume that error was properly preserved, we nonetheless conclude

that the trial court did not err in instructing the jury that it could not consider events occurring

after July 31, 2008. We acknowledge that there may be instances in which harassment occurring

outside the physical workplace can form the basis of a hostile work environment claim. See,

e.g., Dowd v. United Steelworkers of Am., Local No. 286, 253 F.3d 1093, 1102 (8th Cir. 2001)

(“[t]he offensive conduct does not necessarily have to transpire at the workplace in order for a

juror reasonably to conclude that it created a hostile working environment”); see also Nardini v.

Continental Airlines, Inc., 60 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied) (noting that, in summary judgment proceedings, court may not exclude from

consideration allegations of sexual conduct occurring after work hours, but instead must ask

whether sufficient facts exist from which to infer nexus between sexual conduct and work

environment). Here, however, Martinez has not alleged that any offensive conduct was directed

toward her between her last working day at AA Foundries on July 31 and the day she resigned on

August 7. She merely complains that the jury was prohibited from considering that Hunt and

other co-workers presumably testified in favor of Jones at the parole revocation hearing.

Because her co-workers’ attendance at the parole revocation hearing does not constitute

harassment or offensive conduct directed toward Martinez, we cannot conclude the trial court

abused its discretion in instructing the jury to only consider the time period from May 16, 2008
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to July 31, 2008 in assessing whether Martinez was subjected to a hostile work environment.

Accordingly, we overrule Martinez’s first issue on appeal.

Exclusion of Evidence

       Next, Martinez contends the trial court erred in excluding certain exhibits. At trial,

Martinez attempted to introduce several off-color cartoons and printouts of email jokes she

claims were put on her office desk to show the existence of a hostile work environment. Counsel

for AA Foundries objected, arguing that Martinez could not establish who left the papers on her

desk. During an offer of proof, Martinez was asked whether she knew where the cartoons and

emails came from; she answered that the only other person who had access to her office was

Ronnie Hunt. The trial court sustained the objection by AA Foundries and denied admission of

the exhibits.

       We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). An abuse of discretion

occurs when the trial court acts without regard for any guiding rules or principles. Id. at 754.

       Whether or not to admit evidence at trial is a preliminary question to be decided by the

court. TEX. R. EVID. 104(a). A condition of admissibility is the relevance of the offered

evidence. TEX. R. EVID. 401 & 402. “Evidence has no relevance if it is not authentically what

its proponent claims it to be.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).

Rule 901(a) of the Rules of Evidence defines authentication as a “condition precedent” to

admissibility of evidence that requires the proponent to make a threshold showing that would be

“sufficient to support a finding that the matter in question is what its proponent claims.” TEX. R.

EVID. 901(a). The trial court must decide whether the proponent of the evidence has supplied

facts that are sufficient to support a reasonable jury determination that the evidence he has

proffered is authentic. Tienda, 358 S.W.3d at 638; Miles v. Ford Motor Co., 922 S.W.2d 572,
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597 (Tex. App.—Texarkana 1996), aff’d in part and rev’d in part on other grounds, 967 S.W.2d

377 (Tex. 1998). Evidence may be authenticated in various ways, including by direct testimony

from a witness with personal knowledge, by comparison with other authenticated evidence, or by

circumstantial evidence. See TEX. R. EVID. 901(b)(1), (3), (4).

       In this case, Martinez failed to authenticate the proffered exhibits. She did not identify

whom the cartoons and emails were from, but merely stated that Ronnie Hunt was the only other

person at AA Foundries who had access to her office. Simply put, Martinez failed to sufficiently

link the exhibits to their purported author. See Tienda, 358 S.W.3d at 641–42 & n.36 (fact that

an email on its face purports to come from a certain person’s email address, without more, is

typically insufficient to support a finding of authenticity). Given the lack of authentication, we

cannot say the trial court abused its discretion in excluding the exhibits in question. We thus

overrule Martinez’s second issue.

Hostile Work Environment

       Finally, Martinez asserts that the jury’s finding that Martinez was not subjected to a

hostile work environment is against the great weight and preponderance of the evidence because

the evidence proves the contrary proposition as a matter of law.

       When a party attacks the legal sufficiency of an adverse finding on an issue on which she

had the burden of proof, she must demonstrate that the evidence established, as a matter of law,

all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.

2001). In conducting a legal sufficiency review, we view the evidence presented at trial in the

light most favorable to the jury’s verdict, crediting favorable evidence if reasonable jurors could

and disregarding contrary evidence unless reasonable jurors could not. Del Lago Partners, Inc.

v. Smith, 307 S.W.3d 762, 770 (Tex. 2010); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.



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2005). We must determine “whether the evidence at trial would enable reasonable and fair-

minded people to reach the verdict under review.” City of Keller, 168 S.W.3d at 827.

         A party challenging the factual sufficiency of a jury finding upon which that party had

the burden of proof must demonstrate that “the adverse finding is against the great weight and

preponderance of the evidence.” Dow Chem., 46 S.W.3d at 242. We must first examine the

record to determine if there is some evidence to support the finding. Id. at 241-42. If there is,

we must then determine whether “the finding is so contrary to the overwhelming weight and

preponderance of the evidence as to be clearly wrong and manifestly unjust, or if the great

preponderance of the evidence clearly supports its non-existence.” W. Wendell Hall, Hall’s

Standards of Review in Texas, 42 ST. MARY’S L.J. 1, 42 (2010) (quoting Castillo v. U.S. Fire Ins.

Co., 953 S.W.2d 470, 473 (Tex. App.—El Paso 1997, no writ)). Regardless of whether the

“great weight” challenge is to a finding or a non-finding, “[a] court of appeals may reverse and

remand a case for new trial [only] if it concludes that the jury’s ‘failure to find’ is against the

great weight and preponderance of the evidence.” Ames v. Ames, 776 S.W.2d 154, 158 (Tex.

1989).

         In applying these standards, we must be mindful that the jury is the sole judge of the

witnesses’ credibility and the weight given to their testimony. City of Keller, 168 S.W.3d at 819.

Jurors may choose to believe one witness and disbelieve another.           Id. at 819–20.    Most

credibility questions are implicit rather than explicit in a jury’s verdict. Id. at 819. Thus,

reviewing courts must assume jurors decided all credibility questions in favor of the verdict if

reasonable human beings could do so. Id.

         The elements of a prima facie case of hostile work environment are: (1) the employee

belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the

harassment complained of was based on the protected characteristic, e.g., race or gender; (4) the
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harassment complained of affected a term, condition, or privilege of employment; and (5) the

employer knew or should have known of the harassment in question and failed to take prompt

remedial action. Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 325 n.14 (Tex. App.—

Texarkana 2008, pet. denied); see also Waffle House, Inc. v. Williams, 313 S.W.3d 796, 806

(Tex. 2010). “To affect a term, condition, or privilege of employment, the harassment ‘must be

sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an

abusive working environment.’” Aryain v. Wal-Mart Stores of Tex., LP, 534 F.3d 473, 479 (5th

Cir. 2008) (quoting Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 163 (5th Cir.

2007)). The work environment must be “both objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be

so.” Id. (quoting Faragher v.City of Boca Raton, 524 U.S. 775, 786 (1998)). When determining

whether a hostile work environment exists, we review all the circumstances, which may include:

the frequency of the discriminatory conduct; the severity of the conduct; whether the conduct is

physically threatening or humiliating, or a mere offensive utterance; and whether the conduct

unreasonably interferes with an employee’s work performance. See Harris v. Forklift Sys., Inc.,

510 U.S. 17, 23 (1993); Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 220 (Tex. App.—

Austin 2010, no pet.); see also City of Laredo v. Negrete, No. 04-08-00737-CV, 2010 WL

454921, at *5 (Tex. App.—San Antonio Feb. 10, 2010, pet. denied) (mem. op.).

       Addressing Martinez’s legal sufficiency complaint first, we note that although Martinez

testified that AA Foundries did nothing to stop Jones’ harassment of her, there was also some

evidence presented to the contrary.      Hunt testified that even though he was skeptical of

Martinez’s claims due to her history of amorous relationships in the workplace, he interviewed

Jones and other employees about the allegations. All of the men stated that they never saw Jones

leave the work site and go to Martinez’s home. Hunt authored a report documenting Martinez’s
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complaint and further directed Jones to stay away from Martinez. Given this evidence, the jury

could have concluded that Martinez failed to establish the fifth element of a hostile work

environment claim: that AA Foundries failed to take prompt remedial action after learning of

Jones’ harassing behavior. Accordingly, on this record, we conclude that the jury’s adverse

finding on the existence of a hostile work environment is within the zone of reasonable

disagreement and is supported by legally sufficient evidence. See City of Keller, 168 S.W.3d at

822.

       As to Martinez’s factual sufficiency complaint, we are likewise unable to conclude that

the jury’s finding is against the great weight and preponderance of the evidence. The jury was

the sole judge of the witnesses’ credibility and the weight to be given to their testimony. In

addition to Hunt’s testimony, the jury also heard from Martinez’s co-worker, Bruno Montoya,

who testified that he never saw Jones leave AA Foundries and go to Martinez’s house. Montoya

also stated he and Martinez had a sexual relationship and frequented motels while working at AA

Foundries. He stated their arrangement continued until right before Martinez stopped working at

AA Foundries. Montoya also stated he paid Martinez for sex. We defer to the jury’s assessment

as to the credibility of each witness and the weight given to their respective testimony.

Accordingly, we conclude the evidence is factually sufficient to support the jury’s finding. We

overrule Martinez’s third issue.

                                        CONCLUSION

       Based on the foregoing reasons, we overrule Martinez’s issues on appeal, and affirm the

judgment of the trial court.



                                                      Rebeca C. Martinez, Justice



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