Prunty v. Arkansas Freightways, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-4338
_____________________
MILDRED PRUNTY
Plaintiff-Appellant,
versus
ARKANSAS FREIGHTWAYS, INC., and
CHUCK BAUGH
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
(August 4, 1993)
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
JOHNSON, Circuit Judge:
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
1
The district court dismissed the claims against Mr. Baugh
at trial because Mrs. Prunty had failed to serve Baugh with her
complaint.
Title VII2 and the Texas Commission on Human Rights Act3
("article 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.
2
42 U.S.C. § 2000e et seq.
3
TEX. REV. CIV. STAT. ANN. art. 5221k (Vernon 1987 and Vernon
Supp. 1992).
2
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
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.
4
Mr. Smart worked out of the Sherman terminal and visited
the Paris terminal just once per week.
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
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 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.
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
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 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
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.
5
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 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
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.
9
Mrs. Prunty has not questioned this finding.
6
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
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
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
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 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 Purvis, 595 S.W.2d at 104;
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. 70 S.W.2d 397, 402-03, 406
8
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, 15 S.W.
1105, 1107 (Tex. 1891); Hays v. Houston and Great Northern R.R.
Co., 46 Tex. 272 (Tex. 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,
(Tex. 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
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, 234 S.W.2d 403, 404 (Tex. 1950) (emphasis
added)); see also Ft. Worth Elevators Co. v. Russell, 70 S.W.2d
397, 404-06 (Tex. 1934).
9
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 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,
12 S.W. 860, 862 (Tex. 1889). When the company 1) knows about
10
the employee's acts, 2) recognizes that the employee's acts will
continue if he is retained, 3) does nothing to prevent the on-
going 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 generally about Baugh's harassment of
Prunty and took no 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. Applying these facts to Texas'
definition of ratification clearly reveals that Mr. Rippy
ratified Mr. Baugh's infliction of emotional distress upon Mrs.
Prunty. We therefore hold that the district court erred in
denying Mrs. Prunty damages based upon her intentional infliction
of emotional distress claim.14
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
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.).
14
For a plaintiff to prevail on an intentional infliction of
emotional distress claim in Texas, he or she must prove 1) that
the defendant acted intentionally or recklessly, 2) such conduct
was extreme or outrageous, 3) the conduct caused the plaintiff
emotional distress and 4) such emotional distress was severe.
11
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 district court for the assessment
of damages.
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part:
Mitre v. Brooks Fashions Stores, Inc., 840 S.W.2d 612, 620 (Tex.
App.——Corpus Christi 1992); Thomas v. Pankey, 837 S.W.2d 826, 830
(Tex. App.——Tyler 1992); McAlister v. Medina Electric
Cooperative, Inc., 830 S.W.2d 659, 665 (Tex. App.——San Antonio
1992, writ denied); Hammond v. Katy Independent School District,
821 S.W.2d 174, 179 (Tex. App.——Houston [14th Dist.] 1991). Mrs.
Prunty introduced evidence of each of these elements, and the
district court found that each such element existed. Arkansas
Freightways has not questioned the court's findings.
-12-
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."15 Maj. op. at 11.
However, Mrs. Prunty did not plead ratification.16 Because her
pleadings did not encompass ratification, Mrs. Prunty did not
intend to, nor did she, prove ratification.17 She did not argue
15
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. at 5, 6 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 disposes of the case on other issues).
16
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. at 10. "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 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.
17
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 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 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 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 obviously disturbed
actions.
Plaintiff's Exhibit 3.
Furthermore, Mrs. and Mr. Prunty's testimonies at trial indicate that
Mr. Rippy was never informed of Mr. Baugh's specific acts.
Mrs. Prunty testified:
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.
-14-
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.
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?
-15-
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 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.
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.
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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 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.
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.
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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 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 work `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.
Questions by the Court:
Q You say you called Mr. Rippy and said your wife was under a lot of
stress?
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?
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ratification to the trial court.18 See United States v. Garcia-
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).
In holding that Arkansas ratified Mr. Baugh's conduct, the majority
bases its conclusion on the district court's finding that "Mr. Rippy . . .
knew generally about Mr. Baugh's harassment of Prunty and took no action to
end the harassment." Maj. op. at 11 (emphasis added). The district court'
finding that Mr. Rippy knew generally about Mr. Baugh's conduct is not a
sufficient basis for concluding that Arkansas ratified Mr. Baugh's conduct.
See id. at 10 ("RATIFICATION" means the adoption, confirmation or failure to
repudiate unlawful acts . . . . (emphasis added)). In Twyman v. Twyman, 36
Tex. Sup. Ct. J. 827 (May 8, 1993), the Texas Supreme Court stated that the
elements of intentional infliction of emotional distress are: "1) the
defendant acted intentionally or recklessly, 2) the conduct was extreme and
outrageous, 3) the actions of the defendant caused the plaintiff emotional
distress, and 4) the emotional distress suffered by the plaintiff was severe."
Id. at 827-28 (adopting the Restatement (Second) of Torts § 46 (1965)). The
record clearly shows that Mr. Rippy did not know about the extreme and
outrageous nature of Mr. Baugh's conduct. For example, 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). The cases cited by the majority
opinion))Judge, Reed, and McDonald))are distinguishable because all three
involved situations where the employer knew about the specific unlawful
conduct.
18
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
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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 manifest injustice.'" (citations
omitted)). Nor did she preserve this issue on appeal.19 See
Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1990) (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.'"),
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.
19
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. at 8 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 n.4. 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).
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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.
I respectfully dissent from Part II.B. of the majority
opinion.
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