Prunty v. Arkansas Freightways, Inc.

United States Court of Appeals,
Fifth Circuit.
No. 92-4338.
Mildred PRUNTY, Plaintiff-Appellant.
v.
ARKANSAS FREIGHTWAYS, INC., and Chuck Baugh, Defendants-
Appellees.
March 21, 1994.
Appeal from the United States District Court for the Eastern
District of Texas.
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
JOHNSON, Circuit Judge:
The petition for rehearing is GRANTED. We withdraw our
opinion of August 4, 1993, and substitute the following.
Mildred Prunty worked for Arkansas Freightways, Inc. ("AFI")
from April 1987, until June 1, 1989. Throughout the last nine
months of her employment with AFI, Mrs. Prunty was subjected to
extreme and outrageous sexual harassment by her supervisor, Chuck
Baugh. Mrs. Prunty brought this cause of action against AFI and
Mr. Baugh,1 alleging that both defendants were liable for
intentional infliction of emotional distress and violations of
Title VII2 and the Texas Commission on Human Rights Act3 ("article
1
The district court dismissed the claims against Mr. Baugh
at trial because Mrs. Prunty had failed to serve Baugh with her
complaint.
2
42 U.S.C. § 2000e et seq.
3
TEX.REV.CIV.STAT.ANN. art. 5221k (Vernon 1987 and Vernon
Supp.1992).
1
5221k"). Although the district court found that Mrs. Prunty had
suffered severe emotional distress at the hands of Mr. Baugh, it
held that AFI was not liable for the damages which flowed
therefrom. The court also found that AFI was responsible for the
sexual harassment of Mrs. Prunty, having violated Title VII.
However, the court held that neither Title VII nor article 5221k
authorized the type of relief which Mrs. Prunty sought. We affirm
in part and reverse and remand in part.
I. Facts and Procedural History
Arkansas Freightways, Inc. is a trucking company which has
numerous terminals throughout several states, including Texas. In
1987, AFI opened a terminal in Paris, Texas, and hired Mildred
Prunty as a clerical worker for that terminal. Mrs. Prunty had the
responsibility, for the most part, of running the entire Paris
operation. Among other things, she interviewed applicants for
truck-driver positions, made recommendations as to which applicants
should be hired, dispatched drivers, ensured that the trucks were
maintained, performed administrative functions, took care of
customer service, and, if necessary, drove trucks. On July 13,
1987, AFI promoted Mrs. Prunty to operations supervisor and made
her a salaried employee.
From the beginning of her employment until as late as
September 1988, Mrs. Prunty was supervised by Robert Smart, the
terminal manager in charge of the Paris and Sherman terminals.4
4
Mr. Smart worked out of the Sherman terminal and visited
the Paris terminal just once per week.
2
AFI hired Chuck Baugh as the terminal manager for the Paris
terminal in September 1988. Shortly after his arrival in Paris,
Mr. Baugh began to daily make vulgar, offensive, and degrading
comments about Mrs. Prunty both to Mrs. Prunty and to AFI truck
drivers and dock workers.
Throughout this time, Mrs. Prunty communicated with Baugh's
supervisor, Mr. O.D. Rippy. Mr. Rippy, the vice president of AFI's
southwestern operations, worked in the Dallas office. Mrs. Prunty
telephoned Mr. Rippy several times to discuss Baugh's
unprofessional behavior. She also wrote a letter to Mr. Rippy to
inform him of Baugh's abusive language and scurrilous remarks. She
ended the letter by asking Rippy for help.5 Mrs. Prunty's husband
also telephoned Mr. Rippy to inform him of the abuse which Mrs.
Prunty was experiencing. Mr. Prunty told Rippy about the remarks
and gestures which Mr. Baugh had made to and about Mrs. Prunty and
asked him to put an end to the situation. However, Mr. Rippy
informed the Pruntys that Mr. Baugh and Mrs. Prunty would have to
work out the problems themselves.
Receiving no help from Mr. Rippy, Mildred Prunty sent a letter
through express mail to Mr. Sheridan Garrison, AFI's president. In
this letter, she stated that Mr. Baugh had made rude and obscene
comments to her and about her. As a result of this letter, Mr.
Rippy, the vice president who had previously ignored Mr. and Mrs.
Prunty's pleas for help, was ordered to investigate the Paris
5
Mr. Rippy denies receiving this letter; however, the
district court found that Mr. Rippy was aware of Mr. Baugh's
conduct. AFI has not challenged this finding.
3
office to determine whether Mrs. Prunty's allegations were
meritorious. Rippy then determined that the allegations were,
indeed, legitimate. He had the workers at the Paris terminal to
write down the types of statements which Baugh had made about
Prunty. Mr. Rippy then faxed those statements to AFI's office in
Arkansas. Chuck Baugh was promptly dismissed.
Because Rippy faxed the statements, additional AFI employees
were able to view the vulgarities spoken by Mr. Baugh to and about
Mrs. Prunty. Baugh's replacement, Scott Harris, was one of the
Arkansas employees who read the statements. Mrs. Prunty testified
that when she learned that Scott Harris knew about the obscenities
uttered about her, she felt so humiliated and degraded that she
could no longer work with or for him. Prunty therefore resigned
her position as operations supervisor6 and found employment in
Dallas with the United States Postal Service.
Prunty brought this cause of action in Texas state court, and
AFI removed it to federal court. After a bench trial, the district
court found that Baugh's conduct was intentional, offensive,
extreme, and outrageous; the court further held that Baugh's
conduct created an abusive, hostile, and offensive working
environment. The court decided that the sexual harassment was so
6
She stated that she also resigned because she had not been
promoted to the terminal manager position after AFI fired Baugh.
However, the district court found that she never applied for the
position, that she did not inform her superior officers that she
was interested in the position, and that she was not qualified
for the position. There was also evidence that Mrs. Prunty had
informed her fellow workers that she would resign regardless of
whether AFI offered her the terminal manager position.
4
pervasive that AFI was charged with constructive knowledge thereof.
Further, finding that Mr. Rippy actually knew of the sexual
harassment, the court found that Rippy had done nothing to remedy
the problem prior to April 1989—when Prunty contacted AFI's
president.7 The district court also determined that Mrs. Prunty
had, indeed, suffered severe emotional distress as a result of
Baugh's conduct and that Prunty had successfully established a
Title VII claim against AFI.
However, the court went on to hold that Mrs. Prunty was not
entitled to any relief. Furthermore, the court decided that AFI
could not be held liable for the intentional infliction of
emotional distress because the court determined that Baugh had not
acted within the course and scope of his employment.8 Finally, the
court denied Mrs. Prunty's requests for compensatory and punitive
damages under Title VII and article 5221k because it concluded that
7
The court specifically determined:
11. Plaintiff complained to Mr. Baugh's supervisor,
O.D. Rippy, about the working conditions at the Paris,
Texas[,] terminal on several occasions. Mr. Rippy was
the Southwest Region Vice-President for defendant.
Based on the credible evidence, the Court finds that
Mr. Rippy was aware of the sexual harassment of
plaintiff by Mr. Baugh.
12. Prior to April 1989, Mr. Rippy took no action to
remedy the situation at the Paris Terminal.
13. In April 1989, plaintiff contacted defendant's
president, Seridan [sic] Garrison, concerning the
problems at the Paris Terminal.
8
Mrs. Prunty challenges this finding as clearly erroneous.
However, this Court's disposition of the other issues in this
case relieves us of the necessity of reviewing that factual
finding.
5
such damages could not be recovered under those provisions.
Mrs. Prunty appeals, challenging the district court's legal
conclusions that Title VII and article 5221k disallow the recovery
of compensatory and punitive damages. She also challenges the
district court's holding that AFI could be liable for Baugh's
actions only if Baugh acted within the course and scope of his
employment.
II. Discussion
A. Title VII and Article 5221k Damages
Mrs. Prunty sought damages for the differences in wages and
benefits between her job at AFI and her position with the Postal
Service. She also sought damages for the travel expenses she
incurs in driving to and from Dallas each day. The district court,
however, determined that Mrs. Prunty presented no evidence of wage
or benefit differentials.9 The court further decided that Title
VII and article 5221k do not authorize the grant of compensatory
and punitive damages under their provisions. The district court's
interpretation of those statutes was a legal conclusion which this
Court would usually review de novo. Palmco Corp. v. American
Airlines, Inc., 983 F.2d 681, 684 (5th Cir.1993). However, we need
not address the propriety of the district judge's conclusions, for
our review of the record reveals that Mrs. Prunty did not present
any evidence of damages whatsoever.
It is truistic, indeed elementary, that one who seeks
compensatory damages must present evidence of those damages. DAN
9
Mrs. Prunty has not questioned this finding.
6
B. DOBBS, REMEDIES § 3.2, at 140 (1973). Hence, when one of the prima
facie elements of a claim is damages and the claimant fails to
introduce evidence of those damages, he or she commits a fatal
error. In such cases, the district court has no choice but to deny
the monetary relief requested. Thus, in this case, Mrs. Prunty's
failure to prove damages precluded her recovery of those damages,
regardless of whether Title VII and/or article 5221k authorized the
type of damages she requested.10 We therefore affirm the district
court's denial of the requested relief under Title VII and article
5221k, albeit for reasons other than those given by the district
court.
B. Ratification
The district court concluded that an employer can be held
liable for the intentional torts of its employee only when the
employee acts within the course and scope of his employment and
when the act furthers the object for which the employee was hired.
This legal conclusion is subject to de novo review. Palmco Corp.,
983 F.2d at 684.
A review of Texas law reveals quite readily that the district
court erred in its legal conclusion. The law has been well-settled
in Texas for well over a century that if an employer or a manager
10
At oral argument before this Court, counsel for Mrs.
Prunty asserted that she had introduced evidence that Mrs.
Prunty's post office job required her to drive to and from Dallas
daily. However, proving that damages exist is only one component
of proving damages. Claimants must also prove the amount of
those damages. This, Mrs. Prunty failed to do.
7
for an employer ratifies11 or approves the intentional, malicious,
or grossly negligent acts of an agent, the employer may be liable,
not only for compensatory damages, but also for exemplary damages.12
11
The ratification question is properly before this Court.
Indeed, counsel for AFI acknowledged during his oral argument
before this panel that Prunty had proffered the ratification
issue before the district court during the trial. Prunty
likewise properly raised the ratification issue before this
Court: During oral arguments she averred that AFI had ratified
Chuck Baugh's actions. More importantly, under the section of
her brief entitled "Arkansas Freightways is liable for the
actions of Chuck Baugh for the intentional infliction of
emotional distress upon Mildred Prunty," she explained that Rippy
knew of the sexual harassment but did nothing to stop it. Such a
failure to repudiate the egregious acts of Baugh is, by
definition, ratification. Hence, the ratification ball has never
been hidden from any participant in this litigation—not the
parties, not the district court, nor the members of this Court.
12
If the employer's liability is based upon respondeat
superior grounds, then the employee must have acted within the
scope of his employment. Country Roads, Inc. v. Witt, 737 S.W.2d
362, 364 (Tex.App.—Houston [14th Dist.] 1987). However, the
Texas Supreme Court made clear in Ft. Worth Elevators Co. v.
Russell that ratification is not based upon respondeat superior
principles. Ratification is based upon the wrongdoing of the
employer—the employer's ratification of the intentional or
grossly negligent acts of its agents. 123 Tex. 128, 70 S.W.2d
397, 402-03, 406 (1934).
Outside the respondeat superior realm, the scope of
employment requirement arises only in one context. An
employer may be held liable for exemplary damages for the
malicious or grossly negligent acts of its manager only if
that manager acted within the scope of his or her
employment. No scope of employment requirement exists in
other non-respondeat superior situations. Hence, Texas
courts have repeatedly and consistently held that an
employer is liable for exemplary damages because of the
willful acts of its agents if, but only if:
(a) the principal authorized the doing and the manner
of the act, or
(b) the agent was unfit and the principal was reckless
in employing him, or
(c) the agent was employed in a managerial capacity and
8
Purvis, 595 S.W.2d at 104; King, 234 S.W.2d at 404; Ft. Worth
Elevators Co., 70 S.W.2d at 404-06; Gulf, Colorado and Santa Fe
Ry. Co. v. Reed, 80 Tex. 362, 15 S.W. 1105, 1107 (1891); Hays v.
Houston and Great Northern R.R. Co., 46 Tex. 272 (1876); Shearson
Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 925 (Tex.App.—Corpus
Christi 1991, writ dism'd w.o.j.); Al Parker Buick Co. v. Touchy,
788 S.W.2d 129, 130 (Tex.App.—Houston [1st Dist.] 1990); Group
Hospital Services, Inc. v. Daniel, 704 S.W.2d 870, 877
(Tex.App.—Corpus Christi 1985); see also Hitt v. East Texas
Theatres, Inc., 203 S.W.2d 963, 969 (Tex.Civ.App.—Texarkana 1947)
(Finding that the employee had not acted within the scope of his
employment, the court then turned to the question of whether the
employer had ratified the employee's acts).
Very few Texas appellate courts have discussed ratification in
tort cases. However, the few courts which have faced that question
have decided that ratification may occur when the employer or its
vice-principal confirms, adopts, or fails to repudiate the acts of
its employee. Hinote v. Oil, Chemical and Atomic Workers
International Union, AFL-CIO, Local 4-23, 777 S.W.2d 134, 141
(Tex.App.—San Antonio 1989, writ denied); K-Mart No. 4195 v.
Judge, 515 S.W.2d 148, 153, 154 (Tex.Civ.App.—Beaumont 1974, writ
was acting in the scope of employment, or
(d) the employer or a manager of the employer ratified
or approved of the act.
Purvis v. Prattco, Inc., 595 S.W.2d 103, 104 (Tex.1980)
(quoting King v. McGuff, 143 Tex. 432, 234 S.W.2d 403, 404
(1950) (emphasis added)); see also Ft. Worth Elevators Co.
v. Russell, 123 Tex. 128, 70 S.W.2d 397, 404-06 (1934).
9
dism'd w.o.j.). The San Antonio Court of Appeals accepted a trial
court's definition of ratification in Hinote:
"RATIFICATION" means the adoption, confirmation or failure to
repudiate prior unlawful acts which were not legally binding
at a time when the [defendant] had the right and knowledge of
facts necessary to repudiate such conduct; but which, by
ratification or by the failure to repudiate, become the acts
of the defendant.
777 S.W.2d 134, 141. The Beaumont Court of Civil Appeals held in
Judge that since the defendant company's manager had not repudiated
the intentional, tortious acts his employees, the defendant
company, as a matter of law, had ratified the acts. Judge, 515
S.W.2d at 153, 154.
Additionally, the Texas Supreme Court has determined that in
some cases, an employer's retention of an employee who has
committed a tort may constitute ratification. See Reed, 15 S.W. at
1107; International and Great Northern R.R. Co. v. McDonald, 75
Tex. 41, 12 S.W. 860, 862 (1889). When the company 1) knows about
the employee's acts, 2) recognizes that the employee's acts will
continue if he is retained, 3) does nothing to prevent the ongoing
tortious acts, and 4) chooses to retain the employee, the company
ratifies the tortious acts and may be held liable for exemplary
damages. See Reed, 15 S.W. at 1107; McDonald, 12 S.W. at 862.
In this case, the district court found that Mr. Rippy, the
vice president of AFI's southwestern region—a vice principal of the
corporation13—knew about Baugh's harassment of Prunty and took no
13
Because Mr. Rippy is a corporate officer and because he
has the authority to direct, supervise, hire, and discharge
subordinates, he is a vice principal whose acts may subject AFI
to liability for exemplary damages. Ft. Worth Elevators Co., 70
10
action to end the harassment. Until Mrs. Prunty contacted AFI's
president, Mr. Garrison, Rippy did absolutely nothing about the
sexual harassment. Indeed, Mr. Rippy only investigated Prunty's
allegations after he was ordered to do so by a superior officer.
In regard to ratification, of course, it is evident that
before one can ratify an act so that it becomes his own, he must
know of the act with which he is charged. In Wilson v. Monarch
Paper Co., we observed that "although [the employer's] conduct
often rises to the level of illegality, except in the most unusual
cases it is not the sort of conduct, as deplorable as it may
sometimes be, that constitutes "extreme and outrageous' conduct."
939 F.2d 1138, 1143 (5th Cir.1991). In other words, even though
conduct may violate Title VII as sexual harassment, it does not
necessarily become intentional infliction of emotional distress
under Texas law. Only in the most unusual cases does the conduct
move out of the "realm of an ordinary employment dispute," Dean v.
Ford Motor Credit Co., 885 F.2d 300, 307 (5th Cir.1989), into the
classification of "extreme and outrageous," as required for the
tort of intentional infliction of emotional distress. See Wilson,
939 F.2d at 1145.
No one can seriously doubt—and the district court
specifically found—that "Mr. Baugh's sexual harassment of [Mrs.
S.W.2d at 406; Southwestern Bell Telephone Co. v. Reeves, 578
S.W.2d 795, 800 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ
ref'd n.r.e.).
11
Prunty] was extreme and outrageous."14 (Emphasis added.) However,
if Mr. Rippy were made aware only of "an ordinary employment
dispute," he plainly, under the authority of this Court's
precedent, did not have sufficient knowledge to ratify Mr. Baugh's
"extreme and outrageous" tortious conduct so as to expose AFI to
liability for the tort of intentional infliction of emotional
distress.
This Court must look, then, to the district court's findings
14
The district court found, and AFI concedes, that Baugh's
conduct and statements were extreme and outrageous. Mrs. Prunty
and other workers testified about some of the things which Mr.
Baugh did: Among other things, he often told Mrs. Prunty and the
other workers about sexually explicit dreams he had of Mrs.
Prunty. On at least one occasion, Baugh told Prunty that he had
seen a nude picture of her in a magazine. He claimed that the
woman in the picture was hanging from a tree with her legs over
the tree limb so as to expose and display her pudendum.
Baugh also described how he thought Mrs. Prunty's
sexual organs looked in extremely graphic and vulgar ways.
He told the truck drivers and dock workers that "[Prunty's]
pussy probably looks like she was hit between the legs with
a double axe" and that "she would have to have a two-by-four
to keep herself from falling in." Additionally, he
constantly accused Mrs. Prunty of engaging in sexual acts
with another worker. One witness testified that Baugh was
"always" saying that "Jerry is fucking [Prunty] up here
while we're gone [from the office]." Further, Chuck Baugh
brought obscene items, including a crocheted replication of
a man's genitalia, to work to show them to Mrs. Prunty and
to the other workers. He also talked to Prunty, over her
protestations, about the sexual acts of animals. Once, he
even touched Mrs. Prunty's breast.
All of the witnesses who had worked in the Paris
terminal acknowledged that these types of comments and
activities occurred on a day-to-day basis. Although the
other employees were all men, they testified that they were
offended by Baugh's conduct. Further, each felt that the
comments were extremely degrading to Mrs. Prunty. In fact,
one of AFI's employees testified that he believed that Mr.
Baugh's conduct had placed Mrs. Prunty on the brink of a
nervous breakdown.
12
of fact and conclusions of law to determine whether Mr. Rippy's
knowledge reached the level required for ratification. The
district court found, inter alia, the following:
... Mr. Baugh subjected plaintiff directly and indirectly
to sexual comments and innuendo. This conduct continued
during the entire time Mr. Baugh was terminal manager.
Plaintiff complained to Mr. Baugh's supervisor, O.D. Rippy,
about the working conditions ... on several occasions....
[T]he Court finds that Mr. Rippy was aware of the sexual
harassment of plaintiff by Mr. Baugh.... Mr. Rippy took no
action to remedy the situation.... [P]laintiff contacted
defendant's president ... concerning the problems at the Paris
Terminal. Mr. Baugh's actions toward plaintiff were
offensive, unwelcome, and constituted sexual harassment. This
harassment altered the conditions of plaintiff's employment
with defendant and created an abusive, hostile, and offensive
working environment.... Mr. Baugh's harassment was so
pervasive that defendant is charged with constructive
knowledge of such harassment.... Mr. Baugh's sexual
harassment of plaintiff was intentional and reckless, was
extreme and outrageous [and] caused plaintiff severe emotional
distress....
....
In order to establish a claim for intentional infliction
of emotional distress, the plaintiff must prove: ... (2) that
the conduct was extreme and outrageous; ... and (4) the
emotional distress suffered by the plaintiff was severe. Dean
v. Ford Motor Credit Co..... Mr. Baugh's actions amounted to
an intentional infliction of emotional distress upon
plaintiff.
Although the district court's findings could have been more
specific, this Court reads that court's findings as a determination
that Mr. Rippy not only knew of the sexual harassment, but also
knew enough about the harassment to realize that Chuck Baugh's
conduct was extreme and outrageous.15 Although there is some
15
The district court's listing of the factors from Dean
evinces its awareness that the additional findings—beyond those
necessary for a Title VII claim—were required to establish the
tort. It is undoubtedly for this reason that the court
specifically found not only that Mr. Rippy was aware of the
13
dispute as to precisely what details were communicated to Mr.
Rippy, it was not clearly erroneous for the district court to so
find, particularly in view of the pervasive and day-to-day
recurrence of Mr. Baugh's statements and actions.
Applying these facts to Texas' definition of ratification
reveals that Mr. Rippy ratified Mr. Baugh's infliction of emotional
distress upon Mrs. Prunty. We therefore hold that the district
court, while not clearly erring in its findings of fact, erred in
its conclusion of law by denying Mrs. Prunty damages based upon her
claim of intentional infliction of emotional distress.
III. Conclusion
Because Mrs. Prunty failed to introduce evidence of her
general and special damages, the Court need not reach the Title VII
and article 5221k issues. Clearly without such evidence of
damages, Mrs. Prunty is not entitled to the relief she requested.
We therefore AFFIRM the district court's denial of that relief.
As to the intentional infliction of emotional distress claim,
however, the district court failed to apply the facts which he
found—Rippy knew of the sexual harassment but failed to remedy the
situation—to applicable Texas law. Such was error. Applying those
facts to Texas law compels the conclusion that Mr. Rippy ratified
Baugh's actions, thereby subjecting AFI to liability for actual and
exemplary damages. This Court must therefore REVERSE and REMAND
the intentional infliction of emotional distress claim to the
sexual harassment, but also that the sexual harassment was
"extreme and outrageous [and] caused plaintiff severe emotional
distress."
14
district court for the assessment of damages.
EMILIO M. GARZA, Circuit Judge, concurring in part and
dissenting in part:
The majority imposes liability based on its holding that
"applying [the] facts to Texas' definition of ratification clearly
reveals that Mr. Rippy ratified Mr. Baugh's infliction of emotional
distress upon Mrs. Prunty."1 However, Mrs. Prunty did not plead
ratification.2 Because her pleadings did not encompass
1
I join the majority in their revulsion of Chuck Baugh's
conduct, which was more than adequately proven below. My
disagreement with the majority opinion lies in the method by
which it imposes liability; that is, by changing Mrs. Prunty's
only viable appellate argument—course and scope of employment—to
an appellate point that she did not contend—ratification. See
maj. op. slip opinion at 3169 n. 8 (acknowledging that Mrs.
Prunty challenges the district court's finding that Mr. Baugh had
not acted within the course and scope of employment, but
disposing of the case on other issues).
2
Mrs. Prunty's claim that Arkansas should have investigated
and determined the cause of the problems between her and Mr.
Baugh is the closest that Prunty comes to making a ratification
argument. See Record on Appeal, vol. 1, at 5 (Plaintiff's
Original Petition) ("Arkansas Freight Way failed to take any
corrective action after they were notified of the Plaintiff's
complaint."); Brief for Prunty at 19 (Prunty "made repeated
complaints as to Chuck Baugh's [conduct] but Arkansas turned a
deaf ear.... [A]ny reasonable employer would investigate to
determine what is the cause of the problems."). Prunty's
contention that Arkansas breached its duty to investigate her
complaints is better characterized as a claim of negligence,
rather than ratification. "Ratification" is
the adoption, confirmation or failure to repudiate
prior unlawful acts which were not legally binding at a
time when the [defendant] had the right and knowledge
of facts necessary to repudiate such conduct; but
which, by ratification or by the failure to repudiate,
become the acts of the defendant.
Maj. op. slip opinion at 3171. "Actionable Negligence" is
defined as "[t]he breach or nonperformance of a legal duty,
through neglect or carelessness, resulting in damage or
injury to another. It is failure of duty, omission of
15
ratification, Mrs. Prunty did not intend to, nor did she, prove
ratification.3 She did not argue ratification to the district
something which ought to have been done, or which reasonable
man, guided by considerations which ordinarily regulate
conduct of human affairs, would or would not do." Black's
Law Dictionary 29 (6th ed. 1990). By requiring knowledge of
facts necessary to repudiate unlawful conduct, ratification
requires a higher standard of proof than actionable
negligence. The record clearly demonstrates that Mrs.
Prunty never argued that Mr. Rippy knew of facts about Mr.
Baugh's unlawful conduct necessary to repudiate such
conduct, but only that Mr. Rippy had enough information to
conduct an investigation. See infra notes 3 & 4.
3
The record clearly shows that Mr. Rippy did not know about
the extreme and outrageous nature of Mr. Baugh's conduct. For
example, compare the generalities contained in Mrs. Prunty's
letter to Mr. Rippy (Oct. 21, 1988) with the specifics in her
letter to Sheridan Garrison (Apr. 25, 1989). In her October 21
letter, Mrs. Prunty stated:
I know you are a busy man and the problems you
face each day are tremendous but the situation here at
Paris has come to be a real problem. As you know in
the past we have had a few problems but we were able to
pull together and work things out. I was all excited
about the growth and expansion at our terminal and
welcomed Chuck Baugh aboard as Terminal Manager with
great expectations. Chuck came across to us all as a
leader and with all the experience and abilities it
takes to be one.
It wasn't 48 hours later and we had a problem and
it's become a bigger one every [sic] since. I have
been trying to work with Chuck on many things and I
want to work with Chuck but I want him to have as much
respect for me as I have shown for him.
He has made sarcastic remarks as to why he was
hired as Terminal Manager saying "If you had been doing
your job they wouldn't have had to hire me." He also
has said "As a "woman' I would like to see you make it
in this business as a [sic] Operations Supervisor." I
use [sic] to feel secure in my job with Arkansas
Freightways but Chuck has threatened my job on several
occasions in the last five weeks.
Our relationship has deteriated [sic] to the point
where we are unable to peacefully discuss matters. He
16
has an abusive language (not cursing) it is the tone of
voice he uses. I have been trying to do as you ask me
to and do what ever he asks me to do but things are not
working out as well as expected.
His attitude toward his job is effecting [sic]
each and everyone of us negatively at Paris.
Please help!
Plaintiff's Exhibit 2. In her April 25 letter, Prunty
wrote:
I am reluctant to write you concerning the
problems I am having with the local Terminal Manager,
Chuck Baugh. I sent a letter to Mr. Rippy concerning
this some months back. I had no reply to this letter
(copy attached). If something had been said then maybe
things would not have progressed as they have. Chuck
has went [sic] beyond the limits of professionalism by
making rude and obscene comments about me personally
and about me and some of the other people that work at
the local terminal. I have witnesses to this effect.
He has also told these obscene things about me to
another member of management at a terminal in our area.
He is continually putting me down as a woman in
this profession. I would appreciate your help in
correcting this situation fore [sic] it has gotten
totally out of control.
Customers in the area are also aware of the
problem we are having and have brought this matter to
Chucks' [sic] attention on two separate accosions [sic]
(Hon Furn. and Texas Tag). This problem is spreading
beyond the confines of this office and I am not
interested in seeing Arkansas Freightways new reputaion
[sic] in Texas being destroyed by one persons [sic]
obviously disturbed actions.
Plaintiff's Exhibit 3.
Furthermore, and perhaps more importantly, compare the
graphic descriptions of Baugh's conduct, maj. op. slip
opinion at 3172 n. 14, with Mrs. and Mr. Prunty's
testimonies at trial which indicate that Mr. Rippy was never
informed of Mr. Baugh's specific acts.
Mrs. Prunty testified:
17
Questions by Ms. Colson:
Q After he was hired, did you have a discussion with
Mr. Rippy about Mr. Baugh?
A Yes, ma'am. I had one discussion with him that first
week.
Record on Appeal, vol. 2, at 24.
Q Within the first week, what sort of discussion did
you have with Mr. Rippy?
A Well, I told him that this—you know, that we weren't
getting along well and that the way he was, you know,
trying—I believe I told him exactly what he said, that,
you know, he would like to see me make it as a woman in
operations supervisor and that we weren't—you know, we
just weren't clicking together. We couldn't get along.
Everything was just like, whatever I did, it was wrong.
He told me we would just have to work our problems out
between us.
Q The remarks that you [sic] were making at this time,
was it out of your job performance or were they more of
a personal nature?
A Just seemed like it was just personal to me, because
I was doing exactly what I had been doing before. I
could realize that some things, you know, probably need
to be changed, you know, to improve it a little bit,
but, you know, no matter how I did it, if I done it the
way he wanted, that wasn't the way it was supposed to
have been done.
Id. at 25-26.
Q Did you ever—after your conversation with Mr. Rippy,
did you ever contact—first conversation, did you ever
contact him again?
A Yes, ma'am. I called Mr. Rippy at home. Me and the
other drivers got together and we decided if we called
him and all of us called him that he would do
something. So after we all got through working that
night we decided we would call him. We called him from
work and all of us were there, me and Jerry and Robert
and Tim, and we decided we would call him at home,
because that's how important it was.
18
So we called him at home and I told him, you know,
that we were having problems and we couldn't get things
worked out and that he was acting in an unprofessional
manner. And he just told us, you know, that we would
have to just, you know, work with it, what we—to work
things out. And I told him, I said: Well, we're
all—you know, we don't want to quit, you know, meaning
all of us. And he said: Well, if y'all want to find
another job, it would be fine with him.
Q As I understand it, you told him that Mr. Baugh was
acting unprofessional?
A Yes, ma'am.
Q What else did you tell him about his behavior?
A I just, you know, told him that we—the way he would,
you know, do things, it was just—I didn't see it was a
correct way to do. It was just—lack of words to put it
how he was acting.
Id. at 37-38.
Q Then you sent him a letter and then y'all called him
all one evening?
A Yes, ma'am.
Q Did anyone else that you know of contact Mr. Rippy
about the problems?
A Not that I'm aware of.
Id. at 41.
Q Did your husband ever contact Mr. Rippy?
A Yes, Ma'am. He called him at home. When he was in
California he had called me at work and I was upset,
and somehow or another he got Mr. Rippy's home phone
number and he called Mr. Rippy at home. I asked him
not to, but he did.
Id. at 41.
Questions by Mr. Gilker:
Q When he came and interviewed you, did you ever tell
Mr. Rippy about that as part of the problems you had
19
with Arkansas Freightways?
A No, sir. I don't believe Mr. Rippy was aware of that
photograph.
Q When you spoke to Mr. Rippy and he interviewed you on
4/28/89, did you tell him about this dream incident
that Mr. Baugh allegedly made?
A That what?
Q The dream statement that Mr. Baugh allegedly stated.
A When Mr. Rippy came down in April '89?
Q The day he came up and investigated the problems.
A I don't recall what was said to Mr. Rippy that day.
I told him some of the things that day what was said,
yes. I couldn't say it to him. I believe I wrote it
down, because I couldn't say it to him.
Q Had you ever told Mr. Rippy before that day about any
of these problems that you have testified a minute ago?
A Not in graphic detail I did not. I just told him
that he was acting in an unprofessional manner, and
that's what I said to Mr. Rippy.
Q Did you ever say, "He's wearing a tie with a naked
woman on it"?
A No, sir.
Q Or did you ever say, "He's wearing a belt buckle that
I consider offensive" to Mr. Rippy?
A No, sir.
Q Did you ever tell him—you said he was acting
unprofessional. What context did that statement come
up? Was that the telephone call with you and the other
three employees were on?
A I believe so. I called him at home and we was trying
to make him aware that we were having problems there,
and he just—if he had just came and talked to us that
day.
Id. at 61-62.
20
Q And in this phone call, you didn't tell him that—you
did not tell him about the tie incident or any of the
inappropriate remarks that he was making to any of the
employees?
A No, sir.
Q The most you said is, what, he is acting
unprofessional and you complained about how the
terminal is being run?
A Yes, sir.
Id. at 63.
Questions by the Court:
Q You say that you told Mr. Rippy when you first talked
to him about a problem in the office that he was acting
in an unprofessional manner.
A Yes, sir.
Q Is that your testimony?
A Yes, sir.
Q Did you say anything further as to how he was acting
in an unprofessional manner?
A No, sir, and Mr. Rippy did not ask.
Q He didn't ask what you meant by that?
A No, sir.
Q He just said you all needed to get along?
A Yes, sir.
Q How many times did you advise Mr. Rippy that he was
acting in an—I talking about Mr. Baugh—was acting in an
unprofessional manner, either in writing or orally?
A I can recall at least three phone calls that I called
him, two to Dallas and one to his home. And then I
wrote him the letter and sent it to the Dallas
terminal.
Q Were all of those conversations the same with regard
21
to whether or not you discussed how he was acting in an
unprofessional manner?
A Yes, sir. I would just say, you know, that things
weren't working out or, you know, that he's, you know,
not acting responsibly or unprofessional, and he would
say the same thing, you know, we just have to work it
out, you know. That was between me and him and he
wanted us to get along and for the Paris terminal to
run, you know, smooth and everything.
Q He never inquired—
A No, sir.
Q —as to what the problem was?
A No, sir.
Q On the other hand, you never specifically referred to
any offensive remarks that may have been made of a
sexual nature?
A No, sir.
Id. at 73-75 (emphasis added). Mr. Jerry Prunty testified:
Questions by Ms. Colson:
A Yes. I called Mr. Rippy one night and talked to him.
Q When was this?
A I don't know when the date. I was in California when
I called him.
Id. at 86.
Q And I believe you said you were in California?
A Uh-huh.
Q And who did you call?
A Mr. O.D. Rippy.
Q And what was the nature of your—did you get to talk
to Mr. Rippy?
A Yes, I did.
22
Q And did he know who you were?
A Uh-huh.
Q And what was the nature of your discussion?
A Well, I just asked him about Chuck and the stuff that
they had done, you know, what he had done, the talk and
all the—
Q Did you give specific details?
A No, I didn't go into that.
Q What did you tell him? Did you talk to him about
remarks that were being made?
A Uh-huh, about the remarks and stuff he had made and
the gestures he had made.
Q And when you talked about those, what did you tell
him specifically?
A That—just that's all I asked him, could he—could he
see about doing something about it.
Q And you did mention about gestures and remarks that
were being made?
A Yes, I did.
Q What was Mr. Rippy's reaction?
A He told me they would have to work that out, that her
and Mr. Baugh would have to work that out.
Id. at 87-88 (emphasis added).
Questions by Mr. Gilker:
Q When you called Mr. Rippy from California, do you
remember the date?
A No, I can't.
Q Was it before Christmas or after Christmas?
A I don't remember.
Q What specifics did you tell Mr. Rippy in this
23
telephone conversation?
A Well, I just told him Mildred was under a lot of
stress and that she hadn't been, you know, since Mr.
Baugh had come. They just weren't getting along and
all the remarks and stuff.
Q Now, what remarks did you tell Mr. Rippy about?
A I didn't tell—I didn't go into it. I just said
remarks and the gestures.
Q There was a lot of stress since Mr. Baugh had taken
over?
A I just said the things he was saying about her that
those drivers had told me and that she had told me.
Q What things did you tell Mr.—I guess—
A That's all I told him, just the remarks. I said
something about the remarks.
Q I'm not clear. What remarks did you tell him, or you
just said the word "remarks'?
A Uh-huh. I said they was having problems.
Q You didn't tell him any—you didn't tell him what—
A No, I didn't go into—I didn't go into detail.
Q You didn't say, "He's saying gross things about my
wife,' or anything like that?
A I just said the things that he was saying. You know,
I didn't say bad things or whatever.
Q Just that they're having problems and she's under a
lot of stress?
A Yeah.
Id. at 91-93 (emphasis added).
Questions by the Court:
Q You say you called Mr. Rippy and said your wife was
under a lot of stress?
24
A Yes, sir.
Q That she had problems with Mr. Baugh?
A Uh-huh.
Q What else did you say to him, if you can remember?
A I just asked—what I asked him—that's all I said about
the problems. I just asked him could he see about it,
and he told me that was—they would have to work that
out.
Q Well, you testified earlier you said something about
remarks. Did you say anything to him about remarks or
not?
A I didn't go into any detail, just about what he had
been saying about her is what I was saying.
Q Well, what did you tell Mr. Rippy about that, if
anything?
A I didn't go into any detail about the remarks, about
what he said. I just said that what he had been
saying. I just said they had problems.
Q Can you tell me exactly what you said to him?
A Not exactly.
Q Well, can you tell me what—is all you said is that
they were having problems?
A Problems about what he had been saying to the dock
hands about Mildred.
Q That's what you told him?
A Yes, sir.
Id. at 93-94 (emphasis added).
Mr. Rippy was never told about Mr. Baugh's dream,
picture, tie, belt buckle, and specific remarks, nor was he
told about the incident when Mr. Baugh unzipped his trousers
to adjust his shirt. See Record on Appeal, vol. 2, at 73-75
(Mrs. Prunty's testimony), 93-94 (Mr. Prunty's testimony).
Moreover, the cases cited by the majority opinion—Judge,
Reed, and McDonald—are distinguishable because all three
25
court.4 See United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th
Cir.1990) ("We have stated that issues raised for the first time on
appeal "are not reviewable by this court unless they involve purely
legal questions and failure to consider them would result in
involved situations where the employer knew about the
specific unlawful conduct.
4
Prunty only argued that Freightways had a duty to
investigate her complaints that she and Baugh were having
problems, and does not contend that Arkansas knew facts necessary
for it to repudiate Mr. Baugh's unlawful acts. Ms. Colson stated
in final argument:
I think in this case the testimony has shown that
she notified them, she put them on notice that she was
having problems. These weren't just adjustment
problems. She wrote him a letter, she called him, her
husband called him. She finally wrote a letter to the
president of the company.
Ms. Prunty is a person who was reluctant to go
into graphic details, and probably most women would
be—or persons would be reluctant to go into graphic
detail. I think they had enough information and they
were put on enough notice to be aware of what was going
on, and they should have investigated it. And they did
not investigate it and did not believe her complaint.
They refused to go and do that, and I think they were
under a duty to do that and they should have done so,
but they did not do so.
Id. at 193; see also Record on Appeal, vol. 1, at 52
(Plaintiff's Brief as to Damages Pursuant to State Cause of
Action) (arguing that Arkansas should be held liable for
damages for intentional infliction of emotional distress
because Mr. Baugh was employed in a managerial capacity and
was acting within the course and scope of employment, and
because the act furthered the object for which Mr. Baugh was
hired); Id. at 66-69, 71-72 (Plaintiff's Post Trial Brief)
(same).
Furthermore, there is no indication in the record that
Mrs. Prunty simply mislabeled her theory of recovery. Most
telling is the fact that none of the cases cited by or the
arguments set forth by the majority in Part II.B. are
contained in any briefs filed by the parties on appeal or
contained in the record or referred to in the trial below.
26
manifest injustice.' " (citations omitted)). The district court
did not find ratification.5 Nor did she preserve this issue on
5
The majority's logic in "finding" ratification is curious
indeed. The majority initially states the issue before this
Court as follows: "The district court concluded that any
employer can be held liable for the intentional torts of its
employee only when the employee acts within the course and scope
of his employment and when the act furthers the object for which
the employee was hired." Maj. op. slip opinion at 3170 (emphasis
added). However, the record reflects that the district court did
not find "that any employer can be held liable for the
intentional torts of its employee only when the employee acts
within the course and scope of his employment and when the act
furthers the object for which the employee was hired." See
Record on Appeal, vol. 1, at 83 (Conclusions of Law, 17-20).
Furthermore, Mrs. Prunty does not, as the majority states,
"challenge[ ] ... that AFI could be liable for Baugh's actions
only if Baugh acted within the course and scope of employment."
Maj. op. slip opinion at 3169 (emphasis added). From this
"straw" issue the majority can then "readily" conclude "that the
district court erred in its legal conclusion," finding that
ratification, an issue not before the district court, is also a
basis for liability. Maj. op. slip opinion at 3173-74.
Second, in holding that Arkansas ratified Mr. Baugh's
conduct, the majority bases its conclusion on the district
court's finding that "Mr. Rippy ... knew about Mr. Baugh's
harassment of Prunty and took no action to end the
harassment." Maj. op. at 3172. However, as the majority
correctly points out: "[E]ven though conduct may violate
Title VII as sexual harassment, it does not necessarily
become intentional infliction of emotional distress under
Texas law. Only in the most unusual cases does the conduct
move out of the "realm of an ordinary employment dispute,'
[and] into the classification of "extreme and outrageous,'
as required for the tort of intentional infliction of
emotional distress." Maj. op. slip opinion at 3172
(citation omitted). The district court did not find either
"that Mr. Rippy ... knew ... that Chuck Baugh's conduct was
extreme and outrageous," or "that Mr. Rippy ... knew enough
about the harassment to realize that Chuck Baugh's conduct
was extreme and outrageous." Maj. op. slip opinion at 3173;
see Record on Appeal, vol. 1, at 83 (Conclusions of Law, 17-
20). The district court did find, however: "17. Mr.
Baugh's actions amounted to an intentional infliction of
emotional distress upon the plaintiff. 18. An employer is
liable for the actions of any employee when the act is
within the employee's general authority and when the act
furthers the object for which the employee was hired. 19.
27
appeal.6 See Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.1990)
Mr. Baugh's actions against plaintiff were not in
furtherance of any object of defendant; therefore,
plaintiff cannot recover from defendant for emotional
distress. 20. All costs are to be paid by defendant." Id.(citation omitted). The district court made the necessary
findings on the only vicarious liability issue presented to
the Court by Mrs. Prunty for determination: "course and
scope of employment." Inversely, the district court made no
finding on any other liability issue sounding in tort,
including ratification.
Third, since the district court did not find
ratification, the majority must supply this missing link in
the manner it "reads [the] court's findings." Maj. op. slip
opinion at 3173. The majority, not the district court,
finds (reads) that "Mr. Rippy ... knew enough about the
harassment to realize that Chuck Baugh's conduct was extreme
and outrageous." Maj. op. slip opinion at 3173. For the
panel majority, therefore, "constructive knowledge" is
sufficient, contrary to its own statement of Texas law, to
establish ratification as a matter of law. See maj. op. at
3172 ("In regard to ratification, of course, it is evident
that before one can ratify an act so that it becomes his
own, he must know of the act with which he is charged.").
6
See Brief for Prunty at 11 (In her statement of issues
presented on appeal, Mrs. Prunty stated: "Arkansas Freightways
is also liable for Chuck Baugh's actions in his intentional
infliction of emotional distress of Mildred Prunty in that his
actions were in furtherance of his employer's business for which
he was hired and that was the supervision of employees in the
Paris terminal."), 18-19. The majority indicates that "the
ratification question is properly before this Court" because (1)
AFI acknowledged that Prunty had proffered the issue before the
district court; (2) Prunty raised the issue during oral
arguments; and (3) Prunty explained in her brief that Rippy knew
of the sexual harassment but did nothing to stop it. See maj.
op. slip opinion at 3170 n. 11. None of these reasons forms a
basis for appellate review. First, this Court brought up the
issue of ratification—not Mrs. Prunty. Second, although counsel
for AFI stated during oral argument that Mrs. Prunty raised the
issue of ratification before the district court, he also stated
during oral argument that "[t]hat issue [—ratification—] was
never raised by [Mrs. Prunty] in her pleadings." Third, the
record clearly indicates that ratification was not an issue
before the district court. See supra nn. 2-5. Fourth, an
isolated statement in Mrs. Prunty's brief stating that Rippy knew
of the sexual harassment is insufficient to preserve this point
on appeal. See Fed.R.App.P. 28(a).
28
(Stating that appellant abandoned issue on appeal, because
"Fed.R.App.Proc. 28(a)[ (5) ] requires that the appellant's [brief]
contain the reasons he deserves the requested relief "with
citations to the authorities, statutes and parts of the record
relied on.' "), cert. denied, 498 U.S. 966, 111 S.Ct. 427, 112
L.Ed.2d 411 (1990). Nonetheless, the majority reverses on the
basis of ratification.
Accordingly, I respectfully dissent from Part II.B. of the
majority opinion.
29