Waffle House, Inc. v. Cathie Williams

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-05-00373-CV
WAFFLE HOUSE, INC. APPELLANT
V.
CATHIE WILLIAMS APPELLEE
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1 ON REMAND
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This case is on remand from the Supreme Court of Texas, which reversed
this court‘s previous affirmance of the trial court‘s judgment in favor of Appellee
Cathie Williams.2 Williams had sued Appellant Waffle House, Inc. on a claim for
negligent retention and supervision based on the behavior of a coworker. She
1
See Tex. R. App. P. 47.4.
2
Waffle House, Inc. v. Williams, 314 S.W.3d 1 (Tex. App.—Fort Worth
2007) (Waffle House I), rev’d, 313 S.W.3d 796 (Tex. 2010) (Waffle House II).
also asserted a statutory sexual harassment claim under the Texas Commission
on Human Rights Act (TCHRA) 3 (chapter 21 of the labor code) based on the
same behavior. We previously affirmed the trial court‘s judgment on Williams‘s
negligence claim and therefore did not reach Waffle House‘s arguments
regarding Williams‘s statutory sexual harassment claim. After reversing on the
ground that the TCHRA is the exclusive remedy for sexual harassment under
Texas law, the Supreme Court directed this court to consider Waffle House‘s
arguments on Williams‘s statutory claim.4
In two issues, Waffle House argues that Williams waived her right to
recover on her TCHRA claims by failing to file a notice of appeal to challenge the
trial court‘s denial or omission of that relief in the final judgment and,
alternatively, that the evidence is legally and factually insufficient to support the
jury‘s findings on sexual harassment, constructive discharge, and punitive
damages. Because we hold that Williams did not waive her right to recover
under the TCHRA, that the evidence was sufficient to support the jury‘s findings,
and that the damage award has to be capped under the labor code, we affirm the
trial court‘s judgment in part as modified. Because the trial court made no
findings on attorney‘s fees or expert costs and because pre- and post-judgment
interest must be recalculated, we reverse and remand in part.
3
Tex. Lab. Code Ann. §§ 21.001–.556 (West 2006).
4
Waffle House II, 313 S.W.3d at 813.
2
I. Background Facts and Procedural History
In July 2001, Waffle House hired Williams as a waitress. During Williams‘s
employment with Waffle House, she had a number of different managers. At the
time of her hiring, Ossie Ajene was the store manager, and T.J. Marshall was the
district manager. In December 2001, Kevin Love replaced Ajene as the store
manager. Allen Conley replaced Marshall as the district manager in January
2002. Kevin Ross was the division manager (the manager over the district
managers) at that time. Managers did not usually work the third shift, the shift
that Williams worked.
Within Williams‘s first week of work, she became the recipient of
unwelcome sexual behavior and comments from fellow employee Eddie Davis, a
cook. Williams reported Davis to Ajene, Marshall, Love, and Conley. She also
called a Waffle House corporate telephone line to report the problem. Davis was
moved to a different shift, but his unwelcome behavior continued.
In February 2002, Williams quit her job at Waffle House. After receiving
right to sue notices from the EEOC and the Texas Commission on Human
Rights, Williams filed suit against both Davis and Waffle House. She asserted a
claim for assault and battery against Davis. Against Waffle House, she alleged
negligent supervision and retention, as well as ratification of Davis‘s assault and
battery. She also alleged sexual harassment and retaliation under the TCHRA. 5
5
Tex. Lab. Code Ann. §§ 21.001–.556.
3
Davis, who could not be found at the time of trial, was nonsuited by Williams
before trial.
In a 10-2 verdict, the jury found that Davis had sexually harassed Williams
and that Waffle House‘s negligence in supervising Davis proximately caused
Williams‘s damages. The jury also found that Waffle House constructively
discharged Williams by an official action. The jury did not find that Waffle House
ratified Davis‘s assault. The jury also found that Waffle House did not retaliate
against Williams for making her sexual harassment complaint. The jury found
$400,000 in past compensatory damages, $25,000 in future compensatory
damages, and $3,460,000 in punitive damages. The trial court rendered
judgment awarding the past and future compensatory damages, $53,201.09 in
prejudgment interest, and $4,728.60 for court costs. The court lowered the
punitive damages award to $425,000 due to the general cap on punitive
damages. Waffle House filed a motion for new trial and, alternatively, a
suggestion of remittur of damages, and a motion for judgment notwithstanding
the verdict. The trial court denied the motions, and Waffle House appealed.
On Williams‘s negligent supervision or retention claim, Waffle House
challenged the sufficiency of the evidence on breach of duty and causation. 6
This court held that the evidence was sufficient on both elements and that ―[t]he
evidence presented at trial showed that Waffle House did not conduct a sufficient
6
Waffle House I, 314 S.W.3d at 9.
4
investigation given the gravity of Williams‘s complaints, did not follow its own
procedures for investigating such complaints, [and] did not take reasonable
precautions to prevent interaction between Williams and Davis.‖7 Because this
court affirmed on Williams‘s common law claim, it did not reach Waffle House‘s
arguments with respect to her statutory harassment claim.8
On review, the Supreme Court of Texas reversed this court and held that
Williams‘s common law claim failed because her exclusive remedy against
Waffle House was her statutory harassment claim under chapter 21. 9 That court
remanded the case back to this court to consider the statutory sexual
harassment issues raised by Waffle House and not previously addressed by this
court.10
II. Waiver
Waffle House argues in its first issue that because the trial court‘s
judgment denied or omitted recovery on Williams‘s TCHRA claim, she
abandoned the claim by failing to file a notice of appeal challenging the judgment
on the ground that it omitted her requested alternative relief. We disagree.
7
Id. at 11.
8
Id. at 15.
9
Waffle House II, 313 S.W.3d at 813.
10
Id.
5
Williams submitted to the trial court two proposed judgments. Each
judgment awarded recovery on the negligence findings, but one capped the
punitive damages and the other did not. Both of the proposed judgments
included alternative relief recognizing the jury‘s favorable findings on Williams‘s
TCHRA claim and the award of attorney‘s fees and expert fees. Williams
acknowledged that the expert costs and attorney‘s fees were only recoverable
under the TCHRA claim and not under the negligence theory,11 and she
explained to the trial court that she had requested the alternative relief in the
event that the negligence claim was reversed on appeal.
Waffle House objected to Williams‘s proposed judgments on the ground
that the judgment ―should reflect one award, either the sexual harassment claim
or the negligent supervision claim,‖ and that Williams ―should be forced to elect
the greater of the two,‖ or, if she would not, then the trial court should award the
greater of the two recoveries. As requested by Waffle House, the trial court
signed a judgment that did not award the requested alternative relief. The
judgment stated that the jury had made findings that the court ―has received, fully
11
City of Watauga v. Taylor, 752 S.W.2d 199, 205 (Tex. App.—Fort Worth
1988, no writ) (stating that attorney‘s fees are not recoverable under a
negligence claim); Shenandoah Assocs. v. J & K Props., Inc., 741 S.W.2d 470,
486 (Tex. App.—Dallas 1987, writ denied) (stating general rule that expenses
incurred in prosecuting a suit are not recoverable as costs unless recovery is
provided for by statute); Whitley v. King, 581 S.W.2d 541, 544 (Tex. Civ. App.—
Fort Worth 1979, no writ) (stating that ―costs of experts are ‗merely incidental
expenses in preparation for trial and not recoverable‘‖); cf. Tex. Lab. Code Ann. §
21.259(c) (providing that the trial court may in its discretion award expert fees in
an action under the TCHRA).
6
adopted[,] and entered into the [c]ourt‘s record.‖ The judgment then stated that
―each and every one of the jury‘s responses‖ to the charge was incorporated by
reference. The judgment ordered that Williams not recover attorney‘s fees and
expert costs; as Williams pointed out to the court, these costs were not
recoverable under her negligence cause of action.12 Williams did not file a notice
of appeal, but in her appellee‘s brief, she did argue that should her negligence
claims be reversed, she was entitled to recover on her sexual harassment claim.
Williams was not required to do more than she did to preserve her right to
alternative relief. In Boyce Iron Works, Inc. v. Southwestern Bell Telephone Co.,
Boyce sued Southwestern Bell on alternative theories of negligence and
violations of the Deceptive Trade and Practices—Consumer Protection Act
(DTPA).13 Boyce obtained favorable jury findings on both theories of recovery. 14
The trial court rendered a judgment granting the more favorable relief under the
DTPA. The judgment incorporated the jury‘s verdict ―for all purposes.‖ 15
Southwestern Bell appealed, and, in a crosspoint, Boyce asked the court of
appeals to render judgment on its negligence theory if it reversed on its DTPA
12
City of Watauga, 752 S.W.2d at 205; Shenandoah Assocs., 741 S.W.2d
at 486.
13
747 S.W.2d 785, 787 (Tex. 1988).
14
Id. at 786.
15
Id.
7
claim.16 The Supreme Court of Texas considered whether Boyce was required to
have raised a complaint in the trial court before raising a crosspoint on appeal
asking for an award on its negligence claim.17 The Supreme Court held that
when a jury returns favorable findings on alternative theories, the prevailing party
―may seek recovery under an alternative theory if the judgment is reversed on
appeal.‖18 The court noted that the general rule that a party must bring error to
the trial court‘s attention before complaining by crosspoint on appeal ―does not
apply in this case because Boyce received a favorable judgment and had no
reason to complain in the trial court.‖19 The court stated that ―Boyce was not
required . . . to raise the issue of alternative grounds for recovery until the court
of appeals rendered its judgment reversing the DTPA judgment‖ and that ―Boyce
had no duty to complain in the trial court when it recovered all relief available
under its DTPA claim.‖20 Finally, the court said that ―[b]y incorporating the jury‘s
findings in the court‘s judgment, Boyce did everything it could to preserve the
right of recovery under the alternative theory.‖21
16
Id. at 786–87.
17
Id. at 787.
18
Id.
19
Id. at 787.
20
Id.
21
Id.
8
In 2006, the Supreme Court held that when a party has been awarded the
more favorable recovery under two theories, the party is ―not required to raise the
alternative theory as a cross point on appeal.‖22 Two years later, the Supreme
Court discussed Boyce, characterizing it as holding that ―a litigant who has
obtained a favorable judgment and has no reason to complain in the trial court is
not required to raise an issue regarding an alternate ground of recovery until an
appellate court reverses the judgment.‖23 Thus, the plaintiff in that case ―was not
required to raise his alternate theory of recovery until the judgment in his favor
about which he had no complaint was reversed.‖24
Waffle House argues that Boyce does not help Williams because the rule
from that case applies if an appellee receives a favorable judgment and is
satisfied with it, and ―to be satisfied‖ with the judgment ―is not to be satisfied with
what one believes could have been awarded in the judgment.‖ That is, Williams
is not entitled to have a court ―go back and fashion a new judgment that she
believes she could have been awarded (but was explicitly denied instead).‖
Waffle House also argues that whereas in Boyce, the trial court had incorporated
the jury findings ―for all purposes,‖ here the trial court ―merely stated that it ‗fully
adopted‘‖ the jury‘s findings ―and incorporated [them] by reference.‖
22
Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 566 n.9 (Tex. 2006).
23
DiGiuseppe v. Lawler, 269 S.W.3d 588, 603 (Tex. 2008) (discussing
Boyce) (emphasis added).
24
Id.
9
Waffle House‘s attempts to distinguish the case law are unpersuasive.
The trial court here clearly adopted and incorporated all of the jury‘s findings, and
it was not necessary for the court to use the words ―for all purposes.‖ The trial
court then awarded Williams the highest relief that she could have recovered
under the verdict. Williams had no duty to complain in the trial court or on appeal
here when she recovered all the relief that was available to her on her negligence
claim and when she could not recover under both her negligence and statutory
claims.25 She had nothing to complain about at that point and was not required
to raise the alternative theory on appeal until a court had reversed that judgment
about which she had no complaint.26 On remand to this court, Williams has
argued that she should be awarded recovery on her alternative theory, and she
has not waived the issue by failing to have filed a notice of appeal or a cross-
appeal when the case was previously before this court. 27
Waffle House also argues that this court has held that an appellee must file
a notice of appeal and crosspoints in order to have the right to seek a modified
25
See id. at 603.
26
See Hoover Slovacek LLP, 206 S.W.3d at 566 n.9.
27
See Commonwealth Lloyds Ins. Co. v. Downs, 853 S.W.2d 104, 109
(Tex. App.—Fort Worth 1993, writ denied) (allowing the appellee to challenge the
trial court‘s failure to award alternative relief in its judgment by requesting in his
prayer that the judgment be affirmed or, alternatively, modified, even though he
had not brought a crosspoint on that issue).
10
judgment on alternative claims, citing Commonwealth Lloyds Ins. Co. v. Downs.28
Waffle House is incorrect; nowhere in Downs did this court state that without
filing a notice of appeal or asserting a crosspoint, an appellee may not request a
judgment on alternative claims.29 This court stated that although Downs had filed
cross-points, they were ―not phrased so as to request that this court affirm the
judgment on the alternative causes of action if the judgment cannot be affirmed
on the causes of action‖ on which the judgment had been based. 30 We
nevertheless considered Downs‘s challenge to the trial court‘s action in denying
judgment on the alternative causes of action. And we did not state that an
appellee must filed a notice of appeal to be entitled to alternative relief upon
reversal of a favorable judgment; the appellee in that case had filed a notice of
appeal for the crosspoints he had raised, so the issue did not arise. We overrule
Waffle House‘s first issue.
III. Sufficiency of the Evidence
In its second issue, Waffle House argues that the evidence is legally and
factually insufficient to support the jury‘s findings that Williams was sexually
harassed, that she was constructively discharged, and that Waffle House acted
with malice or reckless indifference to Williams‘s right to be free from sex
28
Id.
29
Id.
30
Id.
11
discrimination. Waffle House also argues that the evidence did not permit the
jury to conclude that Waffle House failed to take prompt remedial action.
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
fact.31 In determining whether there is legally sufficient evidence to support the
finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding unless
a reasonable factfinder could not.32
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
31
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and
"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960).
32
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.
2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
12
overwhelming weight of all the evidence, that the answer should be set aside and
a new trial ordered.33
A. Jury’s Findings on Sexual Harassment
Under the TCHRA, an employer commits an unlawful employment practice
if, (1) because of sex, (2) the employer, among other things, discharges or
discriminates against an individual (3) in connection with compensation or the
terms, conditions, or privileges of employment. 34 An employer also commits an
unlawful employment practice if, (1) because of sex, (2) the employer ―limits,
segregates, or classifies an employee or applicant for employment in a manner
that would [a] deprive or tend to deprive an individual of any employment
opportunity or [b] adversely affect in any other manner the status of an
33
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh‘g);
Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
34
Tex. Lab. Code Ann. § 21.051; Herbert v. City of Forest Hill, 189 S.W.3d
369, 374–75 (Tex. App.—Fort Worth 2006, no pet.) (noting that because the
Texas Legislature adopted labor code chapter 21 for the express purpose of
carrying out the policies of Title VII of the federal Civil Rights Act of 1964 and its
amendments, ―when reviewing an issue in a proceeding brought under chapter
21, we may look . . . to cases interpreting the analogous federal provisions‖); see
also Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004)
(stating that federal case law may be cited as authority in cases relating to the
TCHRA).
13
employee.‖35 Sexual harassment is a form of sex-based discrimination prohibited
under the labor code.36
Courts have distinguished between two types of sexual harassment
claims: ―quid pro quo‖ claims and ―hostile work environment‖ claims. A ―quid pro
quo‖ sexual harassment claim is one in which a supervisor made threats
affecting the terms or conditions of a subordinate‘s employment by conditioning
them on the employee‘s grant of sexual favors and, when the employee refused,
the supervisor carried out his or her threat.37 A ―hostile work environment‖ claim
is one in which either no threats to the terms or conditions of employment are
made or the threats are not carried out, but the employer‘s sexually demeaning
behavior nevertheless altered terms or conditions of employment. 38
Distinguishing between these two types of claims serves a specific and limited
35
Tex. Lab. Code Ann. § 21.051.
36
Cox v. Waste Mgmt. of Tex., Inc., 300 S.W.3d 424, 432 (Tex. App.—Fort
Worth 2009, pet. denied).
37
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751–53, 118 S. Ct. 2257,
2264 (1998). To the extent that the opinion in Wal-Mart Stores, Inc. v. Itz from
our sister court of appeals can be read to suggest that a quid pro quo claim is
any sexual harassment claim in which a tangible employment action has been
alleged, we disagree. See 21 S.W.3d 456, 470 (Tex. App.—Austin 2000, pet.
denied) (stating that the elements of a quid pro quo sexual harassment claim are
that ―(1) [a] supervisor (2) because of sex (3) subjects an employee to (4)
unwelcome conduct that (5) affects a tangible aspect of the employment
relationship‖ and citing Ellerth). A hostile work environment claim may also
involve a tangible employment action. See Pa. State Police v. Suders, 542 U.S.
129, 143, 124 S. Ct. 2342, 2352 (2004).
38
Ellerth, 524 U.S. at 751–53, 118 S. Ct. at 2264.
14
purpose: to determine the threshold question of whether the conduct in question
constituted discrimination in violation of Title VII.39 In ―quid pro quo harassment,‖
because employment benefits are conditioned on sexual favors and the
employee is retaliated against for denying those favors, the ―discrimination with
respect to terms or conditions of employment [is] explicit.‖40
In ―hostile work environment harassment,‖ when threats to retaliate against
an employee for denying sexual liberties are either not made or are not carried
out and the claim is based on ―bothersome attentions or sexual remarks,‖ the
plaintiff must show that the harassment is sufficiently severe or pervasive to
create a hostile work environment.41 Thus, the use of the these terms is helpful
to distinguish between claims in which alterations of the terms or conditions of
employment were explicit and those in which the alterations were constructive, in
which case the plaintiff must show severe or pervasive conduct.42 But whether
an employer is vicariously liable for an employee‘s discrimination does not
39
Id.
40
Id. at 752, 753–54, 118 S. Ct. at 2264, 2265 (―When a plaintiff proves
that a tangible employment action resulted from a refusal to submit to a
supervisor‘s sexual demands, he or she establishes that the employment
decision itself constitutes a change in the terms and conditions of employment.‖).
41
Id. at 751–52, 118 S. Ct. at 2264.
42
Id.
15
depend on which kind of claim is asserted by the plaintiff.43 As discussed below,
an employer may be liable for a hostile work environment claim under agency
principles and the avoidable consequences doctrine of tort law.44 This is the form
of sexual harassment alleged by Williams.
Hostile work environment sexual harassment is recognized as a violation
of Title VII because ―a requirement that a man or woman run a gauntlet of sexual
abuse in return for the privilege of being allowed to work and make a living‖ is an
arbitrary barrier to sexual equality at the workplace.45 A ―discriminatorily abusive
work environment‖ can ―detract from employees‘ job performance, discourage
employees from remaining on the job, or keep them from advancing in their
careers,‖ and ―the very fact that the discriminatory conduct was so severe or
pervasive that it created a work environment abusive to employees‖ because of
their gender offends the ―broad rule of workplace equality‖ of Title VII of the
federal Civil Rights Act of 1964, and, consequently, of the TCHRA.46
43
Id. at 751–52, 754, 118 S. Ct. at 2264, 2265 (stating that ―[t]he terms quid
pro quo and hostile work environment are helpful, perhaps, in making a rough
demarcation between cases in which threats are carried out and those where
they are not or are absent altogether, but beyond this are of limited utility‖ and
that the factors discussed in the opinion ―and not the categories quid pro quo and
hostile work environment‖ control on the issue of vicarious liability).
44
See id. at 760, 764, 118 S. Ct. at 2268, 2270.
45
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399,
2405 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982)).
46
Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S. Ct. 367, 370–71
(1993); see also Herbert, 189 S.W.3d at 374–75.
16
To some claims of hostile work environment sexual harassment, an
employer may assert an affirmative defense (as discussed below), but for other
claims, the employer is strictly liable.47 For purposes of determining whether the
employer is strictly liable, hostile work environment sexual harassment claims
can be further divided into two categories: (1) claims alleging harassment
culminating in a tangible employment action and (2) claims asserting no tangible
employment action.48 A tangible employment action ―constitutes a significant
change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.‖49 The employer in such a case is strictly liable for
an employee‘s harassment by a supervisor under the common law ―aided in the
agency relation rule‖ of agency law because ―[a] tangible employment decision
requires an official act of the enterprise, a company act‖ and ―[w]hen a supervisor
makes a tangible employment decision, there is assurance the injury could not
have been inflicted absent the agency relation.‖50
But for a claim in which the employee does not allege a tangible
employment action, borrowing from the avoidable consequences doctrine, the
47
Suders, 542 U.S. at 143, 124 S. Ct. at 2352.
48
Id.
49
Ellerth, 524 U.S. at 760, 761, 118 S. Ct. at 2268.
50
Ellerth, 524 U.S. at 759–62, 118 S. Ct. at 2268, 2269; see also Suders,
542 U.S. at 143, 124 S. Ct. at 2352.
17
United States Supreme Court has said that the employer may assert an
affirmative defense to liability based on the employer‘s efforts at preventing and
correcting harassment.51 To establish this defense, the employer must show (1)
―that the employer exercised reasonable care to prevent and correct promptly
any sexually harassing behavior‖ and (2) ―that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer‖ or to otherwise avoid harm.52
In some cases an employer has not fired an employee or taken some other
tangible employment action, but the employer has nevertheless made the
―working conditions so intolerable that a reasonable person would [feel]
compelled to resign.‖53 Such behavior by the employer is referred to as
―constructive discharge.‖54
In Suders, the United States Supreme Court discussed one subset of
constructive discharge claims: constructive discharge resulting from a hostile
work environment attributable to a supervisor.55 The Court distinguished
51
Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270; Faragher v. City of Boca
Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293 (1998).
52
Faragher, 524 U.S. at 807, 118 S. Ct. at 2293.
53
Suders, 542 U.S. at 147, 124 S. Ct. at 2354.
54
Id. at 140, 146, 124 S. Ct. at 2351, 2354 (stating that the constructive
discharge at issue in that case as stemmed from and could be regarded as ―an
aggravated case[] of sexual harassment or hostile work environment‖).
55
Id. at 143, 124 S. Ct. at 2352.
18
between constructive discharge claims involving a tangible employment action
and those that do not, recognizing that the conduct leading to the employee‘s
decision to resign may or may not have involved official action by the employer.56
The Court noted that with respect to the damages-enhancing provision of Title
VII, constructive discharge is ―functionally the same as an actual termination,‖
and for remedial purposes is likened to formal discharge.57 But, the Court stated,
unlike employers in cases of formal termination, an employer is not always
strictly liable for this type of sexual harassment claim.58 Under federal law at
least, whether an employer may assert an affirmative defense to a claim of
constructive discharge depends on whether a supervisor‘s official act precipitates
the constructive discharge; ―when an official act does not underlie the
constructive discharge,‖ the employer may assert the affirmative defense. 59
56
Id. at 141, 148, 124 S. Ct. at 2351, 2355; see also Aryain v. Wal-Mart
Stores Tex. LP, 534 F.3d 473, 480 (5th Cir. 2008) (stating that ―[i]n certain
circumstances, a constructive discharge can be considered a tangible
employment action that precludes an employer from asserting‖ the affirmative
defense established under United States Supreme Court case law); Cox, 300
S.W.3d at 433 (noting that ―[a] constructive discharge may qualify as a tangible
employment action‖ (emphasis added)). But see Waffle House II, 313 S.W.3d at
805 (citing Suders and stating without qualification that ―[a] constructive
discharge qualifies as an adverse personnel action under the TCHRA‖).
57
Suders, 542 U.S. at 148, 124 S. Ct. at 2355.
58
Id.
59
Id.
19
Waffle House argues that the evidence is not sufficient to support a finding
of either constructive discharge or hostile work environment. We first consider
the sufficiency of the evidence on Williams‘s hostile work environment claim.
(1) Hostile Work Environment
As noted above, to establish a claim for hostile work environment sexual
harassment, the complained-of conduct must be severe or pervasive enough ―‗to
alter the conditions of [the complainant‘s] employment and create an abusive
working environment.‘‖60 Thus, the ―mere utterance of an . . . epithet which
engenders offensive feelings in an employee‖ will not constitute sexual
harassment for which an employer may be held liable.61 An employer may be
found liable for the conduct of a supervisor based on that supervisor‘s failure ―to
act to abate sexual harassment by others after learning of it.‖62
To determine whether a hostile work environment exists, courts must look
to all of the circumstances.63 These circumstances ―may include the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
60
Meritor Sav. Bank, 477 U.S. at 67, 106 S. Ct. 2405; Zeltwanger, 144
S.W.3d at 445 n.5; see also Ellerth, 524 U.S. at 754, 118 S. Ct. at 2265.
61
Harris, 510 U.S. at 21, 114 S. Ct. at 370.
62
Itz, 21 S.W.3d at 472.
63
Id.; see also Harris, 510 U.S. at 23, 114 S. Ct. at 371.
20
with an employee‘s work performance.‖64 The environment must be both
subjectively and objectively offensive: it must be an environment that the plaintiff
perceived to be offensive and one that a reasonable person in the plaintiff‘s
position would consider to be offensive.65
Not only did Williams testify that she found the behavior offensive, but she
reported Davis‘s behavior to four managers whom she worked under during the
time she worked with Davis at Waffle House, and she told both fellow waitress
Bobbie Griffith and Love that she was considering quitting her job because of the
lack of any response from Waffle House. Griffith testified that Williams was
frustrated and cried ―a lot‖ because of Davis‘s behavior and the lack of response
by Waffle House. The evidence is clearly both legally and factually sufficient that
Williams perceived the work environment to be offensive.
We therefore consider whether the evidence was sufficient to meet the
objective part of this standard, that is, whether a reasonable person in Williams‘s
position would have found the environment to be offensive.66 Davis made his
first unwelcome sexual comment to Williams sometime within her first week on
64
Harris, 510 U.S. at 23, 114 S. Ct. at 371; Itz, 21 S.W.3d at 472.
65
Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 42 (Tex. App.—Austin
1998, pet. denied); see also Harris, 510 U.S. at 21–22, 114 S. Ct. at 370.
66
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct.
998, 1003 (1998) (noting that the ―objective severity of harassment should be
judged from the perspective of a reasonable person in the plaintiff‘s position,
considering ‗all the circumstances‘‖).
21
the job with him in July 2001. As Williams walked up to Davis and Pat (a waiter
and the only employee on the premises other than Davis and Williams), Davis
looked her up and down, said ―Uhmm,‖ and told the other waiter that Williams
―looked like [his] baby‘s mama.‖ He had also said that Williams ―ha[s] a fine ass
for a white woman.‖ Williams testified that Davis‘s comments made her feel
―dirty‖ because ―he‘s referring to [her] as someone he had sex with.‖ Williams
stated that she had had no training on what to do in this type of situation. But,
she testified, she reported the incident to her manager, Ajene, the first time she
saw him, which was within a couple of days of the occurrence.
On another occasion, while Williams was washing dishes, Pat took a
spoon ―and put it in [her] back and asked [her] if [she‘d] ever been spooned or if
[she] wanted to be.‖ He then ―took out a whisk and kind of whisked it in [her]
back and said, ‗Have you ever been whisked‘?‖ At the time, Davis was also
there. Both men ―were acting like it was funny,‖ which Williams testified made
her feel as though she ―didn't have a choice,‖ as though she were expected to go
along with their joking. Williams sprayed Pat with the hose at the sink and told
him to stop, and she testified that he did so. Pat stopped his behavior, but Davis
did not.
Ajene testified that he first heard about the problem from Griffith, to whom
Williams had complained about the matter. But Williams testified that she
22
personally told Ajene, and the jury was free to believe her.67 In her testimony,
Williams stated that when she told Ajene, he ―laughed and said that doesn‘t
sound like [Davis].‖ When she insisted, Ajene responded, ―Fine. I'll talk to him.‖
But nothing changed, and Williams testified that Davis ―kept on.‖
Williams told the jury that Davis would corner her and push her into
things—―into the counters[,] and into the grill, into the dish table. Every time I'd
walk by, he‘d back up and push me into things.‖ Davis, who was black, asked
Williams ―if [she] ever had the flavor of a black man or if [she] ever wanted to.‖
While he was saying this to her, Davis had ―his hands down his pants,‖ which
Williams said he did often.
After Williams complained to Ajene about Davis, Ajene held a meeting with
Williams, Davis, and Griffith about Davis‘s temper, at which Davis, who was
much larger than Williams, ―put his finger in [Williams‘s] face‖ and told her that
she ―was too tense and [she] need[ed] to quit being so sensitive.‖ Ajene talked to
Davis about Williams‘s complaints, but Williams testified that this talk did not
solve the problem, and instead Davis became even more hostile. Whenever
67
See In re R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth 2004, pet.
denied) (stating that the factfinder‘s function ―is to judge the credibility of the
witnesses, assign the weight to be given their testimony, and resolve any
conflicts or inconsistencies in the testimony‖); see also State Farm Fire & Cas.
Co. v. Rodriguez, 88 S.W.3d 313, 321 (Tex. App.—San Antonio 2002, pet.
denied) (―It is fundamental that a jury may blend the evidence admitted before it
and believe all, some[,] or none of a witness‘s testimony.‖), abrogated on other
grounds by Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 26–
27 (Tex. 2008).
23
Williams came anywhere near him, ―he‘d be real huffy and push [her] around.‖ If
she came near him, ―he made a point to push [her] out of his way and told [her]
to get the F off his grill.‖ Williams testified that she reported Davis‘s behavior to
Ajene several times.
Davis was moved to a different shift, which Williams testified made Davis
even more hostile. Davis cornered her several times. Once when Williams was
waiting on a table, Davis came up behind her and pushed himself up against her
and held her arms. Williams stated that she ―felt his whole front side on [her]
backside,‖ that is, he pressed his whole body—including his ―pelvic region‖—up
against her. She could feel him breathing on her neck, and he shook her and
said to the customers, ―Isn‘t she great? Isn‘t she wonderful?‖ Davis held himself
so tight against her that she was pushed into the counter she was standing
behind, and trapped her there until he left.68 On several occasions, he trapped
her against the counter or against the grill.
When Williams would put plates away above the grill, Davis would move
his arm across to rub against her breasts. Once when Williams went to the
refrigerator, when she turned around, Davis was blocking her path with his arm
up on the freezer door. She asked him to move, but he did not. She finally had
to duck under his arm to get around him. Another time, after Davis had been
68
We question the relevancy of Waffle House‘s counsel‘s question to
Williams at trial about whether she was actually trapped by Davis because, ―Well,
you could have just crawled over the table, couldn‘t you, if you really needed to?‖
24
moved to the second shift, when Williams went to the time clock to clock out,
Davis was sitting by the clock playing scratch-off lottery tickets. On Ajene‘s
advice to try to get along with Davis, Williams asked him if he had won anything.
Davis chuckled and opened his hand to show her a condom. On other occasions
when Davis was off duty, he would nevertheless be in the restaurant, and
Williams would notice him staring at her. Sometimes he winked at her.
Williams testified that Davis was at the restaurant frequently when off the
clock. His roommate also worked at the restaurant, on the same shift as
Williams. Davis and his roommate shared a car, so Davis often drove his
roommate to work, and Davis would spend time at the restaurant while his
roommate worked.
Ajene told Williams that he would not move Davis to another restaurant or
terminate his employment unless Williams found a replacement cook. Williams
testified that once, Ajene showed her a picture of a man from a strip club,
laughed, and said, ―Look what I found here, Cathie. It‘s your boyfriend.‖ This
happened after she had reported Davis‘s conduct to Ajene.
In its defense, Waffle House produced testimony from Griffith, who worked
with Williams much of the time, that she never witnessed any sexual harassment
by Davis. But Griffith also agreed that it was ―very possible‖ that things were
happening between Davis and Williams that she did not see and that she
preferred to stay out of matters that did not involve her. She also testified that
Williams would talk to her about having ongoing problems with Davis and that
25
Williams had told her she was thinking about quitting because of Davis. Ajene,
Love, Marshall, and Conley also testified that they never saw Davis harass
Williams, but the evidence showed that a manager was not normally present
during Williams‘s shift. We hold that the evidence produced by Williams at trial
was some evidence, and thus legally sufficient evidence, that a reasonable
person in Williams‘s position would have found the work environment at Waffle
House to be offensive.
Waffle House argues, however, that the evidence was insufficient because
Williams made this a ―she said/she said‖ case. It points out that Williams
nonsuited Davis, ―and therefore no one heard his side of the story.‖ Williams‘s
nonsuiting of Davis was not what prevented the jury from hearing Davis‘s version
of events because of course a person may be subpoenaed to testify even if the
person is not a party to the lawsuit.69 As Waffle House is aware, Davis did not
appear for his deposition, and Williams could not find him at the time of trial.
Waffle House does not explain why it did not locate Davis to have him testify or
take his deposition before trial if it believed that Davis‘s testimony would have
been helpful.
Waffle House next points out that Williams had named four potential
eyewitnesses, but that only one of these people, Griffith, testified at trial, and
then Williams ―strenuously fought to keep out crucial parts of Griffith‘s testimony
69
See Tex. R. Civ. P. 176.6 (requiring a person who has been served with
a subpoena to comply with it).
26
that indicated that Williams herself participated in sexual banter or suggestive
behavior.‖ There is no evidence in the record—absolutely none—that Williams
ever engaged in this kind of ―banter‖ with Davis. Giving Waffle House the benefit
of the doubt, we assume that it is not taking the position that a woman who
engages in conversation of a sexual nature with one person could never be
sexually harassed, under the theory that such a woman could not possibly find it
offensive when unsolicited sexual comments or acts are directed at her by
anyone. But then we are at a loss as to why Waffle House keeps pointing out
this testimony, much less referring to it as ―crucial,‖ considering that both this
court and the Supreme Court of Texas have said that the trial court properly
excluded it.70 This testimony may have been ―crucial‖ to a strategy to prejudice
the jury against Williams, but not to establish that she did not find Davis‘s
conduct offensive or that the conduct did not create a hostile work environment.
We are baffled as to why we need to point this out to Waffle House for a third
time.
The jury, as the sole judge of credibility, was entitled to believe Williams‘s
testimony. The fact that the jury did not hear Davis‘s side of the story does not
make the evidence legally or factually insufficient. To the extent that Waffle
70
Waffle House II, 313 S.W.3d at 813 (describing evidence of Williams‘
―general sexual proclivities‖ as ―prejudicial‖ and stating that ―its probative value
as to whether Williams welcomed sexual advances from Davis strikes us as
marginal‖); Waffle House I, 314 S.W.3d at 18 (holding that the trial court‘s belief
that the testimony had no relevance other than to unfairly prejudice the jury was
not arbitrary or unreasonable).
27
House alleges that facts may never be established by the testimony of one
witness, it is mistaken.71 We conclude that the credible evidence supporting the
jury‘s finding is not so weak or so contrary to the overwhelming weight of all the
evidence that the answer should be set aside. Accordingly, we hold that the
evidence is factually sufficient to support the jury‘s finding. We overrule the part
of Waffle House‘s second issue relating to the sufficiency of the evidence of a
hostile work environment.
(2) Affirmative Defense to Hostile Work Environment: Prompt, Remedial
Action
When a plaintiff has established a prima facie hostile work environment
claim, as Williams did in this case, the defendant employer may avoid liability by
establishing an affirmative defense.72 To prove the affirmative defense, the
employer must show that (1) it exercised reasonable care to prevent and
promptly correct the harassing behavior, and (2) the plaintiff unreasonably failed
to take advantage of any preventive or corrective opportunities provided by the
71
See, e.g., Norwich Union Indem. Co. v. Smith, 12 S.W.2d 558, 562 (Tex.
Comm‘n App. 1929, judgm‘t adopted) (stating that generally the testimony of one
witness, if believed by a jury, is sufficient evidence to establish a controverted
fact); see also Dillard Dep’t Stores, Inc. v. Gonzales, 72 S.W.3d 398, 401 (Tex.
App.—El Paso 2002, pet. denied) (upholding favorable jury verdict on sexual
harassment claim in a case characterized by the court as ―a swearing-match‖
and noting that the jury was free to reject any or all of the testimony).
72
See City of Waco v. Lopez, 259 S.W.3d 147, 151 n.3 (Tex. 2008); Cox,
300 S.W.3d at 435.
28
employer or to otherwise avoid harm. 73 Question four of the jury charge tracked
these elements and asked whether, based on these elements, Waffle House was
legally excused from responsibility for Davis‘s conduct. The jury answered ―no.‖
On appeal, Waffle House argues that it took prompt, remedial action that was
reasonably calculated to end the harassment and that Williams declined to use
procedures that could have aided in enabling Waffle House to take quick and
decisive action.
Waffle House challenges both the legal and factual sufficiency of the jury‘s
finding against it. As the party relying on the affirmative defense, Waffle House
had the burden of proof to establish both elements of its defense.74 Because
Waffle House complains of the jury‘s failure to make a finding in its favor on a
question for which it had the burden of proof, on appeal Waffle House must show
that it established the affirmative defense as a matter of law or that the jury‘s
failure to find is against the great weight and preponderance of the credible
evidence.75
73
See Lopez, 259 S.W.3d at 151 n.3; Cox, 300 S.W.3d at 435.
74
Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270 (putting burden on employer
to establish this affirmative defense); see also Garner v. Fidelity Bank, N.A., 244
S.W.3d 855, 861 (Tex. App.—Dallas 2008, no pet.) (stating that party asserting
affirmative defense bears the burden of proving it).
75
See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001);
Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988); see also
Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681–82 (Tex. 2006).
29
In its brief, Waffle House points out evidence that it contends supported its
affirmative defense. It notes that after hearing about Williams‘s complaint, Ajene
―promptly confronted Davis‖ and then moved Davis to a different shift, even
though Davis denied the conduct. After the shift change, Williams and Davis only
had to work together for a total of about eighteen hours, due to overlap during
the shift change. Other managers asked Griffith ―to look out for interaction
between Davis and Williams,‖ and Marshall assisted Williams in calling the
Waffle House associate hotline for reporting harassment. Love told Davis that he
would not tolerate sexual harassment and informed Conley, the new district
manager, of Williams‘s allegations. Conley asked Williams to put her complaint
in writing. Love told Griffith to report back to him if she saw any incident between
Williams and Davis. Waffle House argues that, based on this evidence (which,
according to Waffle House, shows that it took prompt, remedial action), the jury‘s
finding is against the great weight and preponderance of the evidence.
Waffle House also argues that the great weight and preponderance of the
evidence supported an affirmative finding on the second element of its affirmative
defense because it showed that Williams declined to use procedures that could
have aided in enabling Waffle House to take quick and decisive action. Waffle
House contends that Williams ―knew or should have known that the company
policy was that an employee ‗has not officially reported the [sexually harassing
act] until‘‖ the employee has called the hotline. Waffle House provides an
employee complaint hotline as part of its sexual harassment policy. The hotline
30
allows employees to report complaints to corporate management without going
through lower level managers. Yet, Waffle House argues, Williams did not
immediately call the hotline, and she never successfully called the hotline on her
own. Based on this evidence, Waffle House argues that the jury‘s finding is
against the great weight and preponderance of the evidence.
We disagree with Waffle House‘s arguments as to both elements. We
previously held that Waffle House ―did not take reasonable precautions to
prevent interaction between Williams and Davis in the restaurant,‖ and our review
of the evidence does not compel us to reach a different conclusion on remand.76
Ajene was the first Waffle House manager to learn of Williams‘s problems
with Davis. Ajene thus knew of the problem although the parties disputed at trial
whether Williams told Ajene herself or whether Ajene was told about it by Griffith
(who had been told about it by Williams). Ajene spoke to Davis, who denied the
allegations. Ajene testified at trial that when he spoke to Davis, he was not sure
specifically what Williams‘s complaint against Davis consisted of because
Williams would not talk about it with him.
Ajene nevertheless moved Davis to the second shift, which Ajene testified
made Davis ―very mad.‖ Ajene testified that he then ―kept his eyes open‖ for any
problems between Davis and Williams during the shift change. During the nearly
eight months after Davis moved shifts, Williams and Davis worked together a
76
Waffle House I, 314 S.W.3d at 11.
31
total of about 18.5 hours, when their shifts overlapped. Williams testified,
however, that Davis was at the restaurant many times when not on the clock,
eating meals and picking up his pay.
Although Ajene moved Davis to the second shift, he did not take any steps
to ensure that Davis did not interact with Williams in the restaurant when Davis
was not working or when their shifts overlapped. Ajene acknowledged in his
testimony that he did not call the hotline, did not report the complaint to Marshall,
his district manager, did not make a written report (although he did once see fit to
write up Davis for his temper), and did not report Williams‘s complaint to anyone
at Waffle House, even though he had an obligation to do so under Waffle
House‘s sexual harassment policy.
On cross-examination, Ajene claimed that he had asked Williams about
the harassment on more than one occasion but she always said, ―Don‘t worry. I‘ll
take care of it.‖ But he also agreed that the matter was not something that
employees should handle themselves and that Williams was not in any position,
other than calling the hotline, to fix it herself. Furthermore, Williams denied
telling anyone that she could handle the problem herself, and the jury was
entitled to believe her testimony.77 The jury was also entitled to believe
Williams‘s testimony that Ajene told her that he would not move Davis to another
store unless Williams found a replacement for him.
77
See R.W., 129 S.W.3d at 738.
32
After Love replaced Ajene, Williams complained to him about Davis‘s
conduct and told him that she was still encountering Davis at work. Love did not
investigate the complaints and did not investigate whether problems were
continuing. He also did not attempt to ensure that Davis did not interact with
Williams in the restaurant, and at trial, he acknowledged that they still
encountered each other at work. He told her that there was no way to structure
their shifts for her to avoid her coming into contact with Davis as long as they
were both employed at the same restaurant. Williams testified that no one ever
gave her the option of transferring her to another store but that she would have
taken that option had it been given to her.
Love did report the problem to Marshall, his district manager, but he did
not follow up to find out if anything had been done. And once a new district
manager replaced Marshall, Love did not report Williams‘s complaints to him until
Williams threatened to quit. When Williams quit, Love left a message on her
answering machine in which he stated that they could work it out so that she
would not have to see Davis, but his suggestion was that she come into work late
and leave early. He also told her that ―[t]his puts us in a bad situation with
staffing and it wasn‘t our problem.‖ Love testified that his suggestion of changing
her schedule did not mean cutting her hours; it meant ―being able to put a
schedule together that made her comfortable with continuing to work with Waffle
House.‖ He also explained that by telling Williams that her quitting put the
restaurant in a bad position and ―wasn‘t our problem,‖ he meant that ―Conley and
33
I were not on board at the beginning of her employment or [Davis‘s] employment,
and I, in my mind, wanted the people that were on board prior to me coming on
board to tell me where the situation was because I had no knowledge.‖ The jury,
however, did not have to accept these explanations as true. 78
Williams discussed the issue with Marshall, the district manager. Marshall
spoke with Davis about Williams‘s allegations, and again Davis denied them.
Marshall attempted to call the hotline with Williams after she told him that
she had tried to use the hotline before but worried she had not dialed correctly.
Marshall did not, however, report to the hotline on his own, did not conduct an
investigation of Williams‘s complaints, did not follow up with Williams to
determine if any investigation had been made by Waffle House‘s corporate
management, and, importantly, like the other managers involved, did not ensure
that Davis and Williams would have no interaction in the restaurant.
District manager Conley, who had replaced Marshall, told Williams to write
a letter documenting her claims. Conley reported Williams‘s claim to Kevin Ross,
the divisional manager. Williams tried to give her letter to Love, who initially
refused to accept it because he thought it should go directly to Conley, even
though Conley was on vacation at the time. Conley could not remember what he
had done with the letter once he had received it, but he stated that he knew that
he had turned it over to somebody. Conley did not attempt to ensure that
78
See id.
34
Williams and Davis had no interaction in the restaurant. He did not interview
Davis or ask him for a statement.
Although a call was made to a Waffle House hotline, no investigation was
ever made of Williams‘s complaints. Waffle House argues that Williams called
the wrong Waffle House hotline number, but even if she had, she also reported
her complaint to four different managers, and the evidence shows that none of
the managers followed up with Williams as to whether the complaints were being
investigated or whether the problems were ongoing, ensured that Williams and
Davis would have no interaction on the work premises, or attempted to supervise
Davis when he was in the store off-duty to prevent the type of behavior that
Williams reported.
Martha Hensen, a Waffle House employee, testified that Waffle House
made no investigation of Williams‘s complaint because Waffle House had no
record of the call and the complaint was never put into their case management
system. Hensen is a case manager for Waffle House, and in her job she
investigates complaints of violations of company policy. She testified that when a
message is left on the hotline voicemail, someone from the office listens to it and
writes the information down on a legal pad. That person is supposed to then
input that information into the computer. If a mistake was made on the part of the
person who listened to the message in writing it down or putting it into the
computer, there is no way to go back and find out if a mistake was made. The
jury apparently believed that this system was not sufficient to show that Waffle
35
House exercised reasonable care to prevent and promptly correct harassing
behavior.
Valencia Porter, Waffle House‘s in-house employment counsel, testified as
Waffle House‘s representative. She stated that no investigation of Williams‘s
claims was made by the legal department prior to Waffle House receiving the
EEOC complaint because Waffle House was unaware of the problem before that
time. She stated that she did not know what happened to the letter Williams
gave to Conley. Porter also stated that Waffle House had no record of the
hotline call made by Marshall and Williams, which she explained by stating that
they may have called and left a message with Waffle House‘s workers‘
compensation hotline or some other Waffle House 1-800 number by mistake. If
they had called the correct hotline, she ―wouldn't know what happened‖ as to why
Waffle House did not investigate the complaint or have a record of it.
Porter also testified that because the EEOC complaint had come in while
she was on maternity leave, the complaint had been investigated by Waffle
House‘s outside counsel. Although Porter testified as Waffle House‘s
representative, she was not aware of actions that the outside counsel had taken
in the investigation. She did not know what statements, if any, were taken,
including whether Davis, Marshall, Conley, Love, or Ajene were interviewed, or
the content of any statements that were given. Porter stated that although each
of the managers had testified that Waffle House did not follow up with them on
Williams‘s complaint with an investigation, this did not indicate that they were not
36
interviewed because ―they may not recall being interviewed by our attorney or
they may not realize that‘s what you‘re talking about when you say follow-up.‖
The jury was free to disagree with Porter‘s interpretation of the managers‘
testimony.
Furthermore, the jury may have found inadequate Porter‘s suggestion that
Williams and Marshall may have called and left a message with the workers‘
compensation number or other Waffle House number by mistake because even if
Williams and Marshall had done so, they still would have left a message with
Waffle House‘s corporate offices, which failed to follow up on the complaint.
Furthermore, Hensen also testified that every Waffle House manager is required
to report sexual harassment regardless of whether the employee reports it. In
this case, none of the managers personally reported the harassment to the
hotline, and only Marshall made sure that Williams herself had called the hotline.
Based on the evidence, the jury‘s finding that Waffle House did not
exercise reasonable care to prevent and promptly correct the harassing behavior
is not against the great weight and preponderance of the evidence.
As for Williams‘s actions in using procedures that could have helped
Waffle House to take quick and decisive action—that is, calling the hotline—
Waffle House is correct that Williams did not call the hotline immediately. But
Williams testified that Ajene had told her not to and that he would handle the
problem himself. And when she did call the hotline, Waffle House took no action.
Waffle House argued that she called the wrong number, but even under Waffle
37
House‘s theory—that she had called its workers‘ compensation hotline or another
one of Waffle House‘s 1-800 numbers—Williams reported sexual harassment to
Waffle House, but no investigation of her complaint was made. We cannot say
that the jury‘s finding on this element is against the great weight and
preponderance of the evidence or that Waffle House established its affirmative
defense as a matter of law. We therefore overrule this part of Waffle House‘s
second issue.
(3) Constructive Discharge Finding
Waffle House also argues under its second issue that the jury‘s
constructive discharge finding is not supported by legally or factually sufficient
evidence. The jury was instructed that ―[a]n employee is considered to have
been constructively discharged when conditions are so intolerable that a
reasonable person in the employee‘s position would have felt compelled to
resign.‖79 In question two of the charge, the jury answered in the affirmative
79
See Baylor Univ. v. Coley, 221 S.W.3d 599, 603, 605 (Tex. 2007) (stating
that a jury is correctly instructed on constructive discharge when told that ―[a]n
employee is considered to have been discharged when an employer makes
conditions so intolerable that a reasonable person in the employee‘s position
would have felt compelled to resign‖ (emphasis added)). Waffle House does not
argue that because of the slight difference in wording between the charge in this
case and the charge in Coley, the charge in this case was an incorrect statement
of the law, and we are therefore not called upon to consider the question. See
Suders, 542 U.S. at 141, 124 S. Ct. at 2351 (stating that the question was
whether ―working conditions [had] become so intolerable that a reasonable
person in the employee‘s position would have felt compelled to resign‖ and not
specifying that it must be the employer who causes the intolerable conditions).
We comment on the difference only to acknowledge its existence and not to
assign it any weight or significance.
38
when asked if Williams had been constructively discharged from her job at Waffle
House. The jury also found that the discharge occurred at least in part as a
result of an official action.
Waffle House first contends that because there was no evidence to
support Williams‘s hostile work environment sexual harassment claim, there is no
predicate for constructive discharge, and her claim fails.80 Because we have
held that the evidence was sufficient on Williams‘s hostile work environment
claim, we reject this argument.
Waffle House then argues that to show constructive discharge, Williams
had to show ―aggravating factors‖ demonstrating greater severity or
pervasiveness of harassment than the minimum required to prove hostile work
environment, including
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; . . .
[5] badgering, harassment, or humiliation by the employer calculated
to encourage the employee‘s resignation; or [6] offers of early
retirement [or continued employment on terms less favorable than
the employee‘s former status].81
80
See Suders, 542 U.S. at 149, 124 S. Ct. at 2356 (―Creation of a hostile
work environment is a necessary predicate to hostile-environment constructive
discharge case.‖).
81
Cox, 300 S.W.3d at 433–34 (quoting Brown v. Kinney Shoe Corp., 237
F.3d 556, 566 (5th Cir.), cert. denied, 534 U.S. 817, 122 S. Ct. 45 (2001)).
39
It contends that Williams was unable to produce a scintilla of evidence on any of
these aggravating factors. Accordingly, it contends, her constructive discharge
claim fails.
The United States Supreme Court in Suders did not set out any specific
factors that a plaintiff must show to establish constructive discharge in a hostile
work environment sexual harassment claim. It merely stated an objective inquiry:
―Did working conditions become so intolerable that a reasonable person in the
employee‘s position would have felt compelled to resign?‖ 82 But the Court did
make clear that a constructive discharge claim ―entails something more‖ than
what is required to establish a hostile work environment claim; whereas a hostile
work environment sexual harassment claim is established by showing that
―harassing behavior ‗sufficiently severe or pervasive to alter the conditions of [the
plaintiff‘s] employment,‘‖ a constructive discharge claim requires a further
showing that ―the abusive working environment became so intolerable that her
resignation qualified as a fitting response.‖83 The factors listed by Waffle House
are factors that the Fifth Circuit considers relevant to constructive discharge,84
82
Suders, 542 U.S. at 141, 124 S. Ct. at 2351; see also City of Fort Worth
v. DeOreo, 114 S.W.3d 664, 677 (Tex. App.—Fort Worth 2003, no pet.).
83
Suders, 542 U.S. at 133–34, 124 S. Ct. at 2347.
84
Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994)
(noting that ―whether a reasonable employee would feel compelled to resign
depends on the facts of each case‖ but that it considered the enumerated factors
relevant to that determination); see also Cox, 300 S.W.3d at 433–34 (noting that
40
and we agree that they have relevance, particularly in determining whether an
official act underlies the constructive discharge. 85 But we disagree that an
employee may not prove constructive discharge without establishing these
factors.86 If the employee shows that, considering the circumstances, a
reasonable person in the employee‘s position would have felt compelled to
resign, the employee has met her burden of proof.87
In this case, Williams testified that she reported Davis‘s behavior to four
managers, and this testimony was corroborated by the managers themselves.
Williams also testified that she and Marshall called the Waffle House hotline.
Whether or not they mistakenly called the wrong Waffle House number, it is
undisputed that no action was ever taken in response to the phone call,
whichever Waffle House telephone line received the message, and that none of
her managers followed up with Waffle House corporate offices or with Williams to
find out if an investigation was underway. Love was aware that Williams was
considering quitting based on Waffle House‘s lack of response to her complaints,
the Fifth Circuit has considered those factors in determining a constructive
discharge claim).
85
See Suders, 542 U.S. at 148, 124 S. Ct. at 2355 (stating that ―when an
official act does not underlie the constructive discharge,‖ the Ellerth/Faragher
affirmative defense may be asserted by the employer).
86
See, e.g., id. at 148, 124 S. Ct. 2355 (stating that ―harassment so
intolerable as to cause a resignation may be effected through co-worker conduct‖
(emphasis added)).
87
Id. at 141, 124 S. Ct. at 2351.
41
yet he never followed up with anyone to see if Waffle House‘s upper
management was in fact investigating. All the while, Davis‘s behavior continued
unabated—behavior that we have already held was sufficient to demonstrate a
hostile work environment. And after Davis was told of her complaints, his
behavior became more hostile. Yet Waffle House did not offer to transfer
Williams to another store, and Love told Williams that there was no way to
structure their shifts so as to avoid her coming into contact with Davis as long as
they were both employed at the same restaurant. To a reasonable person in
Williams‘s position, it would appear that no matter how many times she reported,
in what manner she reported, or to whom she reported, nothing would change,
despite Davis‘s continued harassment and escalating hostility. Applying the
appropriate standards of review, we hold that the evidence was both legally and
factually sufficient for a jury to find that a reasonable person in Williams‘s position
would have felt compelled to resign.88
Waffle House further contends under this argument that ―prompt remedial
action is fatal to a claim of constructive discharge.‖ We note that whether Waffle
House was entitled to assert the affirmative defense to Williams‘s claim of
88
See Gonzales, 72 S.W.3d at 410 (holding that under the evidence, it was
reasonable for a jury to conclude that the plaintiff had been constructively
discharged ―in that he felt he had no alternative but‖ to remain in the department
and endure the harassment in order to keep his job when the harassment
continued after the plaintiff‘s complaint and the initiation of an investigation, the
plaintiff was never informed of the results of any investigation, and he was
refused a transfer).
42
constructive discharge has not been specifically addressed by the United States
Supreme Court. The Court in Suders expressly declined to set out a standard for
employer liability for co-worker harassment, as was alleged in this case, although
it recognized that ―harassment so intolerable as to cause a resignation may be
effected through co-worker conduct.‖89 But applying the rationale of the Court in
that opinion, Waffle House was entitled to assert the affirmative defense to
Williams‘s constructive discharge claim if Williams‘s decision to resign was in
response to an employer-sanctioned adverse employment action.90 In this case,
the jury found that the constructive discharge was precipitated by official action,
in which case, under the United States Supreme Court‘s reasoning in Suders, the
affirmative defense was not available to Waffle House. But we need not decide
the standard to apply in coworker harassment constructive discharge claims here
because, as discussed above, the jury found against Waffle House on its
affirmative defense. We therefore reject Waffle House‘s contention that its
actions in response to Williams‘s complaints defeat her constructive discharge
claim.
89
Suders, 542 U.S. at 143 n.6, 148, 124 S. Ct. at 2352 n.6, 2355.
90
Id. at 134, 148–49, 124 S. Ct. at 2347, 2355 (noting that absent an
official act of the employer, ―the employer ordinarily would have no particular
reason to suspect that a resignation is not the typical kind daily occurring in the
work force,‖ and ―the extent to which the supervisor‘s misconduct has been aided
by the agency relation . . . is less certain,‖ and therefore the employer should be
afforded the chance to establish the affirmative defense in the absence of an
official action leading to the employee‘s decision to resign).
43
Because the evidence was sufficient to support the jury‘s finding that
Williams had been constructively discharged, we overrule the part of Waffle
House‘s second issue relating to constructive discharge.
B. Jury’s Finding on Malice or Reckless Indifference
Finally, Waffle House also argues under this issue that the jury‘s ―malice or
reckless indifference‖ finding is not supported by legally or factually sufficient
evidence. Section 21.2585 of the labor code provides that a plaintiff may recover
punitive damages from a defendant who engaged in an unlawful intentional
employment practice if the plaintiff demonstrates that the defendant engaged in
the discriminatory practice with malice or with reckless indifference to the state-
protected rights of the plaintiff.91
We addressed Waffle House‘s sufficiency argument in our previous
opinion.92 Waffle House argues that we should reconsider its arguments
because in the prior appeal ―the only punitive damages before [this court] were
those predicated on the negligence findings, . . . and [this court] did not address
the issue of whether Williams‘[s] alternative trial theories could support the
judgment.‖
The jury was not asked to make separate ―malice or reckless indifference‖
findings for the sexual harassment claim and the negligence claim; the question
91
Tex. Lab. Code Ann. § 21.2585(a),(b).
92
See Waffle House I, 314 S.W.3d at 20–22.
44
asked whether the jury found clear and convincing evidence that Waffle House
engaged in the conduct asked about in previous questions (including sexual
harassment) with malice or reckless indifference to Williams‘s right to be free
from such conduct. And our previous analysis of the evidence supporting the
finding was not premised on the jury‘s finding of negligence. Our previous
analysis is equally applicable to Williams‘s statutory sexual harassment claim,
and we see no need to re-examine it here. We incorporate our previous analysis
and our holding that ―the evidence presented is such that the jury could have
reasonably formed a firm belief or conviction that the failure to act by Waffle
House managers created an extreme degree of risk to Williams and showed a
conscious indifference to Williams‘s rights, safety, or welfare.‖93 We overrule this
part of Waffle House‘s second issue. Having overruled all of Waffle House‘s
subarguments, we overrule Waffle House‘s second issue.
The jury awarded Williams $400,000 for past compensatory damages,
$25,000 for future compensatory damages, and $3,460,000 in punitive damages.
Section 21.2585(d) of the labor code, however, caps the amount of
compensatory damages that may be awarded for a claim made under that
chapter, including punitive damages. Under the cap applicable in this case,
Williams could not be awarded more than $300,000. Williams did not argue to
the trial court or on appeal that the cap does not apply.
93
Waffle House I, 314 S.W.3d at 22.
45
Accordingly, we modify the trial court‘s judgment to delete the punitive
damages award and reduce the award of total compensatory damages to
$300,000.
IV. Conclusion
Having overruled Waffle House‘s issues, and having modified the trial
court‘s judgment to award Williams total compensatory damages of $300,000, we
affirm the trial court‘s judgment as modified regarding those damages and to the
extent that it adopts the jury‘s findings on the TCHRA claim and awards
$4,728.60 in taxable court costs, prejudgment interest of five percent per annum
calculated from November 2, 2002 until July 29, 2005, and postjudgment interest
at the rate of five percent per annum on the total amount of the final judgment
less prejudgment interest, compounded annually, beginning July 30, 2005, until
fully paid. But because neither the trial court nor the jury made findings
respecting Williams‘s attorney‘s fees and expert costs, which the trial court may
award to the prevailing party in a claim under the TCHRA,94 and because the
amounts of prejudgment and postjudgment interest will need to be recalculated,
we reverse the trial court‘s judgment as to these matters and remand this case to
the trial court for determination of the issues of (1) attorney‘s fees, (2) expert
costs, (3) the amount of prejudgment interest of five percent per annum
calculated from November 2, 2002 until July 29, 2005, and (4) the amount of
94
Tex. Lab. Code Ann. § 21.259(a), (c).
46
postjudgment interest, based on the total amount of the final judgment less
prejudgment interest, and calculated at five percent per annum, compounded
annually, beginning July 30, 2005, until fully paid.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.
DELIVERED: August 25, 2011
47