1The district court dismissed the claims against Mr. Baugh

at trial because Mrs. Prunty had failed to serve Baugh with her

complaint. 

 

242 U.S.C. § 2000e et seq. 

 

3TEX.REV.CIV.STAT.ANN. art. 5221k (Vernon 1987 and Vernon

Supp.1992). 

1

United States Court of Appeals,

Fifth Circuit.

No. 92-4338.

Mildred PRUNTY, Plaintiff-Appellant.

v.

ARKANSAS FREIGHTWAYS, INC., and Chuck Baugh, DefendantsAppellees.

March 21, 1994.

Appeal from the United States District Court for the Eastern

District of Texas.

Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

JOHNSON, Circuit Judge:

The petition for rehearing is GRANTED. We withdraw our

opinion of August 4, 1993, and substitute the following.

Mildred Prunty worked for Arkansas Freightways, Inc. ("AFI")

from April 1987, until June 1, 1989. Throughout the last nine

months of her employment with AFI, Mrs. Prunty was subjected to

extreme and outrageous sexual harassment by her supervisor, Chuck

Baugh. Mrs. Prunty brought this cause of action against AFI and

Mr. Baugh,1 alleging that both defendants were liable for

intentional infliction of emotional distress and violations of

Title VII2 and the Texas Commission on Human Rights Act3 ("article
 

4Mr. Smart worked out of the Sherman terminal and visited

the Paris terminal just once per week. 

2

5221k"). Although the district court found that Mrs. Prunty had

suffered severe emotional distress at the hands of Mr. Baugh, it

held that AFI was not liable for the damages which flowed

therefrom. The court also found that AFI was responsible for the

sexual harassment of Mrs. Prunty, having violated Title VII.

However, the court held that neither Title VII nor article 5221k

authorized the type of relief which Mrs. Prunty sought. We affirm

in part and reverse and remand in part.

I. Facts and Procedural History

Arkansas Freightways, Inc. is a trucking company which has

numerous terminals throughout several states, including Texas. In

1987, AFI opened a terminal in Paris, Texas, and hired Mildred

Prunty as a clerical worker for that terminal. Mrs. Prunty had the

responsibility, for the most part, of running the entire Paris

operation. Among other things, she interviewed applicants for

truck-driver positions, made recommendations as to which applicants

should be hired, dispatched drivers, ensured that the trucks were

maintained, performed administrative functions, took care of

customer service, and, if necessary, drove trucks. On July 13,

1987, AFI promoted Mrs. Prunty to operations supervisor and made

her a salaried employee.

From the beginning of her employment until as late as

September 1988, Mrs. Prunty was supervised by Robert Smart, the

terminal manager in charge of the Paris and Sherman terminals.4
 

5Mr. 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

AFI hired Chuck Baugh as the terminal manager for the Paris

terminal in September 1988. Shortly after his arrival in Paris,

Mr. Baugh began to daily make vulgar, offensive, and degrading

comments about Mrs. Prunty both to Mrs. Prunty and to AFI truck

drivers and dock workers.

Throughout this time, Mrs. Prunty communicated with Baugh's

supervisor, Mr. O.D. Rippy. Mr. Rippy, the vice president of AFI's

southwestern operations, worked in the Dallas office. Mrs. Prunty

telephoned Mr. Rippy several times to discuss Baugh's

unprofessional behavior. She also wrote a letter to Mr. Rippy to

inform him of Baugh's abusive language and scurrilous remarks. She

ended the letter by asking Rippy for help.5 Mrs. Prunty's husband

also telephoned Mr. Rippy to inform him of the abuse which Mrs.

Prunty was experiencing. Mr. Prunty told Rippy about the remarks

and gestures which Mr. Baugh had made to and about Mrs. Prunty and

asked him to put an end to the situation. However, Mr. Rippy

informed the Pruntys that Mr. Baugh and Mrs. Prunty would have to

work out the problems themselves.

Receiving no help from Mr. Rippy, Mildred Prunty sent a letter

through express mail to Mr. Sheridan Garrison, AFI's president. In

this letter, she stated that Mr. Baugh had made rude and obscene

comments to her and about her. As a result of this letter, Mr.

Rippy, the vice president who had previously ignored Mr. and Mrs.

Prunty's pleas for help, was ordered to investigate the Paris
 

6She 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

office to determine whether Mrs. Prunty's allegations were

meritorious. Rippy then determined that the allegations were,

indeed, legitimate. He had the workers at the Paris terminal to

write down the types of statements which Baugh had made about

Prunty. Mr. Rippy then faxed those statements to AFI's office in

Arkansas. Chuck Baugh was promptly dismissed.

Because Rippy faxed the statements, additional AFI employees

were able to view the vulgarities spoken by Mr. Baugh to and about

Mrs. Prunty. Baugh's replacement, Scott Harris, was one of the

Arkansas employees who read the statements. Mrs. Prunty testified

that when she learned that Scott Harris knew about the obscenities

uttered about her, she felt so humiliated and degraded that she

could no longer work with or for him. Prunty therefore resigned

her position as operations supervisor6 and found employment in

Dallas with the United States Postal Service.

Prunty brought this cause of action in Texas state court, and

AFI removed it to federal court. After a bench trial, the district

court found that Baugh's conduct was intentional, offensive,

extreme, and outrageous; the court further held that Baugh's

conduct created an abusive, hostile, and offensive working

environment. The court decided that the sexual harassment was so
 

7The 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. 

 

8Mrs. Prunty challenges this finding as clearly erroneous. 

However, this Court's disposition of the other issues in this

case relieves us of the necessity of reviewing that factual

finding. 

5

pervasive that AFI was charged with constructive knowledge thereof.

Further, finding that Mr. Rippy actually knew of the sexual

harassment, the court found that Rippy had done nothing to remedy

the problem prior to April 1989—when Prunty contacted AFI's

president.

7 The district court also determined that Mrs. Prunty

had, indeed, suffered severe emotional distress as a result of

Baugh's conduct and that Prunty had successfully established a

Title VII claim against AFI.

However, the court went on to hold that Mrs. Prunty was not

entitled to any relief. Furthermore, the court decided that AFI

could not be held liable for the intentional infliction of

emotional distress because the court determined that Baugh had not

acted within the course and scope of his employment.8 Finally, the

court denied Mrs. Prunty's requests for compensatory and punitive

damages under Title VII and article 5221k because it concluded that
 

9Mrs. Prunty has not questioned this finding. 

6

such damages could not be recovered under those provisions.

Mrs. Prunty appeals, challenging the district court's legal

conclusions that Title VII and article 5221k disallow the recovery

of compensatory and punitive damages. She also challenges the

district court's holding that AFI could be liable for Baugh's

actions only if Baugh acted within the course and scope of his

employment.

II. Discussion

A. Title VII and Article 5221k Damages

Mrs. Prunty sought damages for the differences in wages and

benefits between her job at AFI and her position with the Postal

Service. She also sought damages for the travel expenses she

incurs in driving to and from Dallas each day. The district court,

however, determined that Mrs. Prunty presented no evidence of wage

or benefit differentials.9 The court further decided that Title

VII and article 5221k do not authorize the grant of compensatory

and punitive damages under their provisions. The district court's

interpretation of those statutes was a legal conclusion which this

Court would usually review de novo. Palmco Corp. v. American

Airlines, Inc., 983 F.2d 681, 684 (5th Cir.1993). However, we need

not address the propriety of the district judge's conclusions, for

our review of the record reveals that Mrs. Prunty did not present

any evidence of damages whatsoever.

It is truistic, indeed elementary, that one who seeks

compensatory damages must present evidence of those damages. DAN
 

10At 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

B. DOBBS, REMEDIES § 3.2, at 140 (1973). Hence, when one of the prima

facie elements of a claim is damages and the claimant fails to

introduce evidence of those damages, he or she commits a fatal

error. In such cases, the district court has no choice but to deny

the monetary relief requested. Thus, in this case, Mrs. Prunty's

failure to prove damages precluded her recovery of those damages,

regardless of whether Title VII and/or article 5221k authorized the

type of damages she requested.10 We therefore affirm the district

court's denial of the requested relief under Title VII and article

5221k, albeit for reasons other than those given by the district

court.

B. Ratification

The district court concluded that an employer can be held

liable for the intentional torts of its employee only when the

employee acts within the course and scope of his employment and

when the act furthers the object for which the employee was hired.

This legal conclusion is subject to de novo review. Palmco Corp.,

983 F.2d at 684.

A review of Texas law reveals quite readily that the district

court erred in its legal conclusion. The law has been well-settled

in Texas for well over a century that if an employer or a manager
 

11The 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. 

 

12If the employer's liability is based upon respondeat

superior grounds, then the employee must have acted within the

scope of his employment. Country Roads, Inc. v. Witt, 737 S.W.2d

362, 364 (Tex.App.—Houston [14th Dist.] 1987). However, the

Texas Supreme Court made clear in Ft. Worth Elevators Co. v.

Russell that ratification is not based upon respondeat superior

principles. Ratification is based upon the wrongdoing of the

employer—the employer's ratification of the intentional or

grossly negligent acts of its agents. 123 Tex. 128, 70 S.W.2d

397, 402-03, 406 (1934).

Outside the respondeat superior realm, the scope of

employment requirement arises only in one context. An

employer may be held liable for exemplary damages for the

malicious or grossly negligent acts of its manager only if

that manager acted within the scope of his or her

employment. No scope of employment requirement exists in

other non-respondeat superior situations. Hence, Texas

courts have repeatedly and consistently held that an

employer is liable for exemplary damages because of the

willful acts of its agents if, but only if:

(a) the principal authorized the doing and the manner

of the act, or

(b) the agent was unfit and the principal was reckless

in employing him, or

(c) the agent was employed in a managerial capacity and

8

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
was acting in the scope of employment, or

(d) the employer or a manager of the employer ratified

or approved of the act.

Purvis v. Prattco, Inc., 595 S.W.2d 103, 104 (Tex.1980)

(quoting King v. McGuff, 143 Tex. 432, 234 S.W.2d 403, 404

(1950) (emphasis added)); see also Ft. Worth Elevators Co.

v. Russell, 123 Tex. 128, 70 S.W.2d 397, 404-06 (1934). 

9

Purvis, 595 S.W.2d at 104; King, 234 S.W.2d at 404; Ft. Worth

Elevators Co., 70 S.W.2d at 404-06; Gulf, Colorado and Santa Fe

Ry. Co. v. Reed, 80 Tex. 362, 15 S.W. 1105, 1107 (1891); Hays v.

Houston and Great Northern R.R. Co., 46 Tex. 272 (1876); Shearson

Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 925 (Tex.App.—Corpus

Christi 1991, writ dism'd w.o.j.); Al Parker Buick Co. v. Touchy,

788 S.W.2d 129, 130 (Tex.App.—Houston [1st Dist.] 1990); Group

Hospital Services, Inc. v. Daniel, 704 S.W.2d 870, 877

(Tex.App.—Corpus Christi 1985); see also Hitt v. East Texas

Theatres, Inc., 203 S.W.2d 963, 969 (Tex.Civ.App.—Texarkana 1947)

(Finding that the employee had not acted within the scope of his

employment, the court then turned to the question of whether the

employer had ratified the employee's acts).

Very few Texas appellate courts have discussed ratification in

tort cases. However, the few courts which have faced that question

have decided that ratification may occur when the employer or its

vice-principal confirms, adopts, or fails to repudiate the acts of

its employee. Hinote v. Oil, Chemical and Atomic Workers

International Union, AFL-CIO, Local 4-23, 777 S.W.2d 134, 141

(Tex.App.—San Antonio 1989, writ denied); K-Mart No. 4195 v.

Judge, 515 S.W.2d 148, 153, 154 (Tex.Civ.App.—Beaumont 1974, writ
 

13Because Mr. Rippy is a corporate officer and because he

has the authority to direct, supervise, hire, and discharge

subordinates, he is a vice principal whose acts may subject AFI

to liability for exemplary damages. Ft. Worth Elevators Co., 70

10

dism'd w.o.j.). The San Antonio Court of Appeals accepted a trial

court's definition of ratification in Hinote:

"RATIFICATION" means the adoption, confirmation or failure to

repudiate prior unlawful acts which were not legally binding

at a time when the [defendant] had the right and knowledge of

facts necessary to repudiate such conduct; but which, by

ratification or by the failure to repudiate, become the acts

of the defendant.

777 S.W.2d 134, 141. The Beaumont Court of Civil Appeals held in

Judge that since the defendant company's manager had not repudiated

the intentional, tortious acts his employees, the defendant

company, as a matter of law, had ratified the acts. Judge, 515

S.W.2d at 153, 154.

Additionally, the Texas Supreme Court has determined that in

some cases, an employer's retention of an employee who has

committed a tort may constitute ratification. See Reed, 15 S.W. at

1107; International and Great Northern R.R. Co. v. McDonald, 75

Tex. 41, 12 S.W. 860, 862 (1889). When the company 1) knows about

the employee's acts, 2) recognizes that the employee's acts will

continue if he is retained, 3) does nothing to prevent the ongoing

tortious acts, and 4) chooses to retain the employee, the company

ratifies the tortious acts and may be held liable for exemplary

damages. See Reed, 15 S.W. at 1107; McDonald, 12 S.W. at 862.

In this case, the district court found that Mr. Rippy, the

vice president of AFI's southwestern region—a vice principal of the

corporation13—knew about Baugh's harassment of Prunty and took no
S.W.2d at 406; Southwestern Bell Telephone Co. v. Reeves, 578

S.W.2d 795, 800 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ

ref'd n.r.e.). 

11

action to end the harassment. Until Mrs. Prunty contacted AFI's

president, Mr. Garrison, Rippy did absolutely nothing about the

sexual harassment. Indeed, Mr. Rippy only investigated Prunty's

allegations after he was ordered to do so by a superior officer.

In regard to ratification, of course, it is evident that

before one can ratify an act so that it becomes his own, he must

know of the act with which he is charged. In Wilson v. Monarch

Paper Co., we observed that "although [the employer's] conduct

often rises to the level of illegality, except in the most unusual

cases it is not the sort of conduct, as deplorable as it may

sometimes be, that constitutes "extreme and outrageous' conduct."

939 F.2d 1138, 1143 (5th Cir.1991). In other words, even though

conduct may violate Title VII as sexual harassment, it does not

necessarily become intentional infliction of emotional distress

under Texas law. Only in the most unusual cases does the conduct

move out of the "realm of an ordinary employment dispute," Dean v.

Ford Motor Credit Co., 885 F.2d 300, 307 (5th Cir.1989), into the

classification of "extreme and outrageous," as required for the

tort of intentional infliction of emotional distress. See Wilson,

939 F.2d at 1145.

No one can seriously doubt—and the district court

specifically found—that "Mr. Baugh's sexual harassment of [Mrs.
 

14The district court found, and AFI concedes, that Baugh's

conduct and statements were extreme and outrageous. Mrs. Prunty

and other workers testified about some of the things which Mr.

Baugh did: Among other things, he often told Mrs. Prunty and the

other workers about sexually explicit dreams he had of Mrs.

Prunty. On at least one occasion, Baugh told Prunty that he had

seen a nude picture of her in a magazine. He claimed that the

woman in the picture was hanging from a tree with her legs over

the tree limb so as to expose and display her pudendum.

Baugh also described how he thought Mrs. Prunty's

sexual organs looked in extremely graphic and vulgar ways. 

He told the truck drivers and dock workers that "[Prunty's]

pussy probably looks like she was hit between the legs with

a double axe" and that "she would have to have a two-by-four

to keep herself from falling in." Additionally, he

constantly accused Mrs. Prunty of engaging in sexual acts

with another worker. One witness testified that Baugh was

"always" saying that "Jerry is fucking [Prunty] up here

while we're gone [from the office]." Further, Chuck Baugh

brought obscene items, including a crocheted replication of

a man's genitalia, to work to show them to Mrs. Prunty and

to the other workers. He also talked to Prunty, over her

protestations, about the sexual acts of animals. Once, he

even touched Mrs. Prunty's breast.

All of the witnesses who had worked in the Paris

terminal acknowledged that these types of comments and

activities occurred on a day-to-day basis. Although the

other employees were all men, they testified that they were

offended by Baugh's conduct. Further, each felt that the

comments were extremely degrading to Mrs. Prunty. In fact,

one of AFI's employees testified that he believed that Mr.

Baugh's conduct had placed Mrs. Prunty on the brink of a

nervous breakdown. 

12

Prunty] was extreme and outrageous."14 (Emphasis added.) However,

if Mr. Rippy were made aware only of "an ordinary employment

dispute," he plainly, under the authority of this Court's

precedent, did not have sufficient knowledge to ratify Mr. Baugh's

"extreme and outrageous" tortious conduct so as to expose AFI to

liability for the tort of intentional infliction of emotional

distress.

This Court must look, then, to the district court's findings
 

15The district court's listing of the factors from Dean

evinces its awareness that the additional findings—beyond those

necessary for a Title VII claim—were required to establish the

tort. It is undoubtedly for this reason that the court

specifically found not only that Mr. Rippy was aware of the

13

of fact and conclusions of law to determine whether Mr. Rippy's

knowledge reached the level required for ratification. The

district court found, inter alia, the following:

... Mr. Baugh subjected plaintiff directly and indirectly

to sexual comments and innuendo. This conduct continued

during the entire time Mr. Baugh was terminal manager.

Plaintiff complained to Mr. Baugh's supervisor, O.D. Rippy,

about the working conditions ... on several occasions....

[T]he Court finds that Mr. Rippy was aware of the sexual

harassment of plaintiff by Mr. Baugh.... Mr. Rippy took no

action to remedy the situation.... [P]laintiff contacted

defendant's president ... concerning the problems at the Paris

Terminal. Mr. Baugh's actions toward plaintiff were

offensive, unwelcome, and constituted sexual harassment. This

harassment altered the conditions of plaintiff's employment

with defendant and created an abusive, hostile, and offensive

working environment.... Mr. Baugh's harassment was so

pervasive that defendant is charged with constructive

knowledge of such harassment.... Mr. Baugh's sexual

harassment of plaintiff was intentional and reckless, was

extreme and outrageous [and] caused plaintiff severe emotional

distress....

....

In order to establish a claim for intentional infliction

of emotional distress, the plaintiff must prove: ... (2) that

the conduct was extreme and outrageous; ... and (4) the

emotional distress suffered by the plaintiff was severe. Dean

v. Ford Motor Credit Co..... Mr. Baugh's actions amounted to

an intentional infliction of emotional distress upon

plaintiff.

Although the district court's findings could have been more

specific, this Court reads that court's findings as a determination

that Mr. Rippy not only knew of the sexual harassment, but also

knew enough about the harassment to realize that Chuck Baugh's

conduct was extreme and outrageous.15 Although there is some
sexual harassment, but also that the sexual harassment was

"extreme and outrageous [and] caused plaintiff severe emotional

distress." 

14

dispute as to precisely what details were communicated to Mr.

Rippy, it was not clearly erroneous for the district court to so

find, particularly in view of the pervasive and day-to-day

recurrence of Mr. Baugh's statements and actions.

Applying these facts to Texas' definition of ratification

reveals that Mr. Rippy ratified Mr. Baugh's infliction of emotional

distress upon Mrs. Prunty. We therefore hold that the district

court, while not clearly erring in its findings of fact, erred in

its conclusion of law by denying Mrs. Prunty damages based upon her

claim of intentional infliction of emotional distress.

III. Conclusion

Because Mrs. Prunty failed to introduce evidence of her

general and special damages, the Court need not reach the Title VII

and article 5221k issues. Clearly without such evidence of

damages, Mrs. Prunty is not entitled to the relief she requested.

We therefore AFFIRM the district court's denial of that relief.

As to the intentional infliction of emotional distress claim,

however, the district court failed to apply the facts which he

found—Rippy knew of the sexual harassment but failed to remedy the

situation—to applicable Texas law. Such was error. Applying those

facts to Texas law compels the conclusion that Mr. Rippy ratified

Baugh's actions, thereby subjecting AFI to liability for actual and

exemplary damages. This Court must therefore REVERSE and REMAND

the intentional infliction of emotional distress claim to the
 

1I join the majority in their revulsion of Chuck Baugh's

conduct, which was more than adequately proven below. My

disagreement with the majority opinion lies in the method by

which it imposes liability; that is, by changing Mrs. Prunty's

only viable appellate argument—course and scope of employment—to

an appellate point that she did not contend—ratification. See

maj. op. slip opinion at 3169 n. 8 (acknowledging that Mrs.

Prunty challenges the district court's finding that Mr. Baugh had

not acted within the course and scope of employment, but

disposing of the case on other issues). 

 

2Mrs. Prunty's claim that Arkansas should have investigated

and determined the cause of the problems between her and Mr.

Baugh is the closest that Prunty comes to making a ratification

argument. See Record on Appeal, vol. 1, at 5 (Plaintiff's

Original Petition) ("Arkansas Freight Way failed to take any

corrective action after they were notified of the Plaintiff's

complaint."); Brief for Prunty at 19 (Prunty "made repeated

complaints as to Chuck Baugh's [conduct] but Arkansas turned a

deaf ear.... [A]ny reasonable employer would investigate to

determine what is the cause of the problems."). Prunty's

contention that Arkansas breached its duty to investigate her

complaints is better characterized as a claim of negligence,

rather than ratification. "Ratification" is

the adoption, confirmation or failure to repudiate

prior unlawful acts which were not legally binding at a

time when the [defendant] had the right and knowledge

of facts necessary to repudiate such conduct; but

which, by ratification or by the failure to repudiate,

become the acts of the defendant.

Maj. op. slip opinion at 3171. "Actionable Negligence" is

defined as "[t]he breach or nonperformance of a legal duty,

through neglect or carelessness, resulting in damage or

injury to another. It is failure of duty, omission of

15

district court for the assessment of damages.

EMILIO M. GARZA, Circuit Judge, concurring in part and

dissenting in part:

The majority imposes liability based on its holding that

"applying [the] facts to Texas' definition of ratification clearly

reveals that Mr. Rippy ratified Mr. Baugh's infliction of emotional

distress upon Mrs. Prunty."1 However, Mrs. Prunty did not plead

ratification.2 Because her pleadings did not encompass
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. 

 

3The record clearly shows that Mr. Rippy did not know about

the extreme and outrageous nature of Mr. Baugh's conduct. For

example, compare the generalities contained in Mrs. Prunty's

letter to Mr. Rippy (Oct. 21, 1988) with the specifics in her

letter to Sheridan Garrison (Apr. 25, 1989). In her October 21

letter, Mrs. Prunty stated:

I know you are a busy man and the problems you

face each day are tremendous but the situation here at

Paris has come to be a real problem. As you know in

the past we have had a few problems but we were able to

pull together and work things out. I was all excited

about the growth and expansion at our terminal and

welcomed Chuck Baugh aboard as Terminal Manager with

great expectations. Chuck came across to us all as a

leader and with all the experience and abilities it

takes to be one.

It wasn't 48 hours later and we had a problem and

it's become a bigger one every [sic] since. I have

been trying to work with Chuck on many things and I

want to work with Chuck but I want him to have as much

respect for me as I have shown for him.

He has made sarcastic remarks as to why he was

hired as Terminal Manager saying "If you had been doing

your job they wouldn't have had to hire me." He also

has said "As a "woman' I would like to see you make it

in this business as a [sic] Operations Supervisor." I

use [sic] to feel secure in my job with Arkansas

Freightways but Chuck has threatened my job on several

occasions in the last five weeks.

Our relationship has deteriated [sic] to the point

where we are unable to peacefully discuss matters. He

16

ratification, Mrs. Prunty did not intend to, nor did she, prove

ratification.3 She did not argue ratification to the district
has an abusive language (not cursing) it is the tone of

voice he uses. I have been trying to do as you ask me

to and do what ever he asks me to do but things are not

working out as well as expected.

His attitude toward his job is effecting [sic]

each and everyone of us negatively at Paris.

Please help!

Plaintiff's Exhibit 2. In her April 25 letter, Prunty

wrote:

I am reluctant to write you concerning the

problems I am having with the local Terminal Manager,

Chuck Baugh. I sent a letter to Mr. Rippy concerning

this some months back. I had no reply to this letter

(copy attached). If something had been said then maybe

things would not have progressed as they have. Chuck

has went [sic] beyond the limits of professionalism by

making rude and obscene comments about me personally

and about me and some of the other people that work at

the local terminal. I have witnesses to this effect. 

He has also told these obscene things about me to

another member of management at a terminal in our area.

He is continually putting me down as a woman in

this profession. I would appreciate your help in

correcting this situation fore [sic] it has gotten

totally out of control.

Customers in the area are also aware of the

problem we are having and have brought this matter to

Chucks' [sic] attention on two separate accosions [sic]

(Hon Furn. and Texas Tag). This problem is spreading

beyond the confines of this office and I am not

interested in seeing Arkansas Freightways new reputaion

[sic] in Texas being destroyed by one persons [sic]

obviously disturbed actions.

Plaintiff's Exhibit 3.

Furthermore, and perhaps more importantly, compare the

graphic descriptions of Baugh's conduct, maj. op. slip

opinion at 3172 n. 14, with Mrs. and Mr. Prunty's

testimonies at trial which indicate that Mr. Rippy was never

informed of Mr. Baugh's specific acts.

Mrs. Prunty testified:

17
Questions by Ms. Colson:

Q After he was hired, did you have a discussion with

Mr. Rippy about Mr. Baugh?

A Yes, ma'am. I had one discussion with him that first

week.

Record on Appeal, vol. 2, at 24.

Q Within the first week, what sort of discussion did

you have with Mr. Rippy?

A Well, I told him that this—you know, that we weren't

getting along well and that the way he was, you know,

trying—I believe I told him exactly what he said, that,

you know, he would like to see me make it as a woman in

operations supervisor and that we weren't—you know, we

just weren't clicking together. We couldn't get along. 

Everything was just like, whatever I did, it was wrong. 

He told me we would just have to work our problems out

between us.

Q The remarks that you [sic] were making at this time,

was it out of your job performance or were they more of

a personal nature?

A Just seemed like it was just personal to me, because

I was doing exactly what I had been doing before. I

could realize that some things, you know, probably need

to be changed, you know, to improve it a little bit,

but, you know, no matter how I did it, if I done it the

way he wanted, that wasn't the way it was supposed to

have been done.

Id. at 25-26.

Q Did you ever—after your conversation with Mr. Rippy,

did you ever contact—first conversation, did you ever

contact him again?

A Yes, ma'am. I called Mr. Rippy at home. Me and the

other drivers got together and we decided if we called

him and all of us called him that he would do

something. So after we all got through working that

night we decided we would call him. We called him from

work and all of us were there, me and Jerry and Robert

and Tim, and we decided we would call him at home,

because that's how important it was.

18
So we called him at home and I told him, you know,

that we were having problems and we couldn't get things

worked out and that he was acting in an unprofessional

manner. And he just told us, you know, that we would

have to just, you know, work with it, what we—to work

things out. And I told him, I said: Well, we're

all—you know, we don't want to quit, you know, meaning

all of us. And he said: Well, if y'all want to find

another job, it would be fine with him.

Q As I understand it, you told him that Mr. Baugh was

acting unprofessional?

A Yes, ma'am.

Q What else did you tell him about his behavior?

A I just, you know, told him that we—the way he would,

you know, do things, it was just—I didn't see it was a

correct way to do. It was just—lack of words to put it

how he was acting.

Id. at 37-38.

Q Then you sent him a letter and then y'all called him

all one evening?

A Yes, ma'am.

Q Did anyone else that you know of contact Mr. Rippy

about the problems?

A Not that I'm aware of.

Id. at 41.

Q Did your husband ever contact Mr. Rippy?

A Yes, Ma'am. He called him at home. When he was in

California he had called me at work and I was upset,

and somehow or another he got Mr. Rippy's home phone

number and he called Mr. Rippy at home. I asked him

not to, but he did.

Id. at 41.

Questions by Mr. Gilker:

Q When he came and interviewed you, did you ever tell

Mr. Rippy about that as part of the problems you had

19
with Arkansas Freightways?

A No, sir. I don't believe Mr. Rippy was aware of that

photograph.

Q When you spoke to Mr. Rippy and he interviewed you on

4/28/89, did you tell him about this dream incident

that Mr. Baugh allegedly made?

A That what?

Q The dream statement that Mr. Baugh allegedly stated.

A When Mr. Rippy came down in April '89?

Q The day he came up and investigated the problems.

A I don't recall what was said to Mr. Rippy that day. 

I told him some of the things that day what was said,

yes. I couldn't say it to him. I believe I wrote it

down, because I couldn't say it to him.

Q Had you ever told Mr. Rippy before that day about any

of these problems that you have testified a minute ago?

A Not in graphic detail I did not. I just told him

that he was acting in an unprofessional manner, and

that's what I said to Mr. Rippy.

Q Did you ever say, "He's wearing a tie with a naked

woman on it"?

A No, sir.

Q Or did you ever say, "He's wearing a belt buckle that

I consider offensive" to Mr. Rippy?

A No, sir.

Q Did you ever tell him—you said he was acting

unprofessional. What context did that statement come

up? Was that the telephone call with you and the other

three employees were on?

A I believe so. I called him at home and we was trying

to make him aware that we were having problems there,

and he just—if he had just came and talked to us that

day.

Id. at 61-62.

20
Q And in this phone call, you didn't tell him that—you

did not tell him about the tie incident or any of the

inappropriate remarks that he was making to any of the

employees?

A No, sir.

Q The most you said is, what, he is acting

unprofessional and you complained about how the

terminal is being run?

A Yes, sir.

Id. at 63.

Questions by the Court:

Q You say that you told Mr. Rippy when you first talked

to him about a problem in the office that he was acting

in an unprofessional manner.

A Yes, sir.

Q Is that your testimony?

A Yes, sir.

Q Did you say anything further as to how he was acting

in an unprofessional manner?

A No, sir, and Mr. Rippy did not ask.

Q He didn't ask what you meant by that?

A No, sir.

Q He just said you all needed to get along?

A Yes, sir.

Q How many times did you advise Mr. Rippy that he was

acting in an—I talking about Mr. Baugh—was acting in an

unprofessional manner, either in writing or orally?

A I can recall at least three phone calls that I called

him, two to Dallas and one to his home. And then I

wrote him the letter and sent it to the Dallas

terminal.

Q Were all of those conversations the same with regard

21
to whether or not you discussed how he was acting in an

unprofessional manner?

A Yes, sir. I would just say, you know, that things

weren't working out or, you know, that he's, you know,

not acting responsibly or unprofessional, and he would

say the same thing, you know, we just have to work it

out, you know. That was between me and him and he

wanted us to get along and for the Paris terminal to

run, you know, smooth and everything.

Q He never inquired—

A No, sir.

Q —as to what the problem was?

A No, sir.

Q On the other hand, you never specifically referred to

any offensive remarks that may have been made of a

sexual nature?

A No, sir.

Id. at 73-75 (emphasis added). Mr. Jerry Prunty testified:

Questions by Ms. Colson:

A Yes. I called Mr. Rippy one night and talked to him.

Q When was this?

A I don't know when the date. I was in California when

I called him.

Id. at 86.

Q And I believe you said you were in California?

A Uh-huh.

Q And who did you call?

A Mr. O.D. Rippy.

Q And what was the nature of your—did you get to talk

to Mr. Rippy?

A Yes, I did.

22
Q And did he know who you were?

A Uh-huh.

Q And what was the nature of your discussion?

A Well, I just asked him about Chuck and the stuff that

they had done, you know, what he had done, the talk and

all the—

Q Did you give specific details?

A No, I didn't go into that.

Q What did you tell him? Did you talk to him about

remarks that were being made?

A Uh-huh, about the remarks and stuff he had made and

the gestures he had made.

Q And when you talked about those, what did you tell

him specifically?

A That—just that's all I asked him, could he—could he

see about doing something about it.

Q And you did mention about gestures and remarks that

were being made?

A Yes, I did.

Q What was Mr. Rippy's reaction?

A He told me they would have to work that out, that her

and Mr. Baugh would have to work that out.

Id. at 87-88 (emphasis added).

Questions by Mr. Gilker:

Q When you called Mr. Rippy from California, do you

remember the date?

A No, I can't.

Q Was it before Christmas or after Christmas?

A I don't remember.

Q What specifics did you tell Mr. Rippy in this

23
telephone conversation?

A Well, I just told him Mildred was under a lot of

stress and that she hadn't been, you know, since Mr.

Baugh had come. They just weren't getting along and

all the remarks and stuff.

Q Now, what remarks did you tell Mr. Rippy about?

A I didn't tell—I didn't go into it. I just said

remarks and the gestures.

Q There was a lot of stress since Mr. Baugh had taken

over?

A I just said the things he was saying about her that

those drivers had told me and that she had told me.

Q What things did you tell Mr.—I guess—

A That's all I told him, just the remarks. I said

something about the remarks.

Q I'm not clear. What remarks did you tell him, or you

just said the word "remarks'?

A Uh-huh. I said they was having problems.

Q You didn't tell him any—you didn't tell him what—

A No, I didn't go into—I didn't go into detail.

Q You didn't say, "He's saying gross things about my

wife,' or anything like that?

A I just said the things that he was saying. You know,

I didn't say bad things or whatever.

Q Just that they're having problems and she's under a

lot of stress?

A Yeah.

Id. at 91-93 (emphasis added).

Questions by the Court:

Q You say you called Mr. Rippy and said your wife was

under a lot of stress?

24
A Yes, sir.

Q That she had problems with Mr. Baugh?

A Uh-huh.

Q What else did you say to him, if you can remember?

A I just asked—what I asked him—that's all I said about

the problems. I just asked him could he see about it,

and he told me that was—they would have to work that

out.

Q Well, you testified earlier you said something about

remarks. Did you say anything to him about remarks or

not?

A I didn't go into any detail, just about what he had

been saying about her is what I was saying.

Q Well, what did you tell Mr. Rippy about that, if

anything?

A I didn't go into any detail about the remarks, about

what he said. I just said that what he had been

saying. I just said they had problems.

Q Can you tell me exactly what you said to him?

A Not exactly.

Q Well, can you tell me what—is all you said is that

they were having problems?

A Problems about what he had been saying to the dock

hands about Mildred.

Q That's what you told him?

A Yes, sir.

Id. at 93-94 (emphasis added).

Mr. Rippy was never told about Mr. Baugh's dream,

picture, tie, belt buckle, and specific remarks, nor was he

told about the incident when Mr. Baugh unzipped his trousers

to adjust his shirt. See Record on Appeal, vol. 2, at 73-75

(Mrs. Prunty's testimony), 93-94 (Mr. Prunty's testimony). 

Moreover, the cases cited by the majority opinion—Judge,

Reed, and McDonald—are distinguishable because all three

25
involved situations where the employer knew about the

specific unlawful conduct. 

 

4Prunty only argued that Freightways had a duty to

investigate her complaints that she and Baugh were having

problems, and does not contend that Arkansas knew facts necessary

for it to repudiate Mr. Baugh's unlawful acts. Ms. Colson stated

in final argument:

I think in this case the testimony has shown that

she notified them, she put them on notice that she was

having problems. These weren't just adjustment

problems. She wrote him a letter, she called him, her

husband called him. She finally wrote a letter to the

president of the company.

Ms. Prunty is a person who was reluctant to go

into graphic details, and probably most women would

be—or persons would be reluctant to go into graphic

detail. I think they had enough information and they

were put on enough notice to be aware of what was going

on, and they should have investigated it. And they did

not investigate it and did not believe her complaint. 

They refused to go and do that, and I think they were

under a duty to do that and they should have done so,

but they did not do so.

Id. at 193; see also Record on Appeal, vol. 1, at 52

(Plaintiff's Brief as to Damages Pursuant to State Cause of

Action) (arguing that Arkansas should be held liable for

damages for intentional infliction of emotional distress

because Mr. Baugh was employed in a managerial capacity and

was acting within the course and scope of employment, and

because the act furthered the object for which Mr. Baugh was

hired); Id. at 66-69, 71-72 (Plaintiff's Post Trial Brief)

(same).

Furthermore, there is no indication in the record that

Mrs. Prunty simply mislabeled her theory of recovery. Most

telling is the fact that none of the cases cited by or the

arguments set forth by the majority in Part II.B. are

contained in any briefs filed by the parties on appeal or

contained in the record or referred to in the trial below. 

26

court.4 See United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th

Cir.1990) ("We have stated that issues raised for the first time on

appeal "are not reviewable by this court unless they involve purely

legal questions and failure to consider them would result in
 

5The majority's logic in "finding" ratification is curious

indeed. The majority initially states the issue before this

Court as follows: "The district court concluded that any

employer can be held liable for the intentional torts of its

employee only when the employee acts within the course and scope

of his employment and when the act furthers the object for which

the employee was hired." Maj. op. slip opinion at 3170 (emphasis

added). However, the record reflects that the district court did

not find "that any employer can be held liable for the

intentional torts of its employee only when the employee acts

within the course and scope of his employment and when the act

furthers the object for which the employee was hired." See

Record on Appeal, vol. 1, at 83 (Conclusions of Law, 17-20). 

Furthermore, Mrs. Prunty does not, as the majority states,

"challenge[ ] ... that AFI could be liable for Baugh's actions

only if Baugh acted within the course and scope of employment." 

Maj. op. slip opinion at 3169 (emphasis added). From this

"straw" issue the majority can then "readily" conclude "that the

district court erred in its legal conclusion," finding that

ratification, an issue not before the district court, is also a

basis for liability. Maj. op. slip opinion at 3173-74.

Second, in holding that Arkansas ratified Mr. Baugh's

conduct, the majority bases its conclusion on the district

court's finding that "Mr. Rippy ... knew about Mr. Baugh's

harassment of Prunty and took no action to end the

harassment." Maj. op. at 3172. However, as the majority

correctly points out: "[E]ven though conduct may violate

Title VII as sexual harassment, it does not necessarily

become intentional infliction of emotional distress under

Texas law. Only in the most unusual cases does the conduct

move out of the "realm of an ordinary employment dispute,'

[and] into the classification of "extreme and outrageous,'

as required for the tort of intentional infliction of

emotional distress." Maj. op. slip opinion at 3172

(citation omitted). The district court did not find either

"that Mr. Rippy ... knew ... that Chuck Baugh's conduct was

extreme and outrageous," or "that Mr. Rippy ... knew enough

about the harassment to realize that Chuck Baugh's conduct

was extreme and outrageous." Maj. op. slip opinion at 3173; 

see Record on Appeal, vol. 1, at 83 (Conclusions of Law, 17-

20). The district court did find, however: "17. Mr.

Baugh's actions amounted to an intentional infliction of

emotional distress upon the plaintiff. 18. An employer is

liable for the actions of any employee when the act is

within the employee's general authority and when the act

furthers the object for which the employee was hired. 19. 

27

manifest injustice.' " (citations omitted)). The district court

did not find ratification.5 Nor did she preserve this issue on
Mr. Baugh's actions against plaintiff were not in

furtherance of any object of defendant; therefore,

plaintiff cannot recover from defendant for emotional

distress. 20. All costs are to be paid by defendant." Id.

(citation omitted). The district court made the necessary

findings on the only vicarious liability issue presented to

the Court by Mrs. Prunty for determination: "course and

scope of employment." Inversely, the district court made no

finding on any other liability issue sounding in tort,

including ratification.

Third, since the district court did not find

ratification, the majority must supply this missing link in

the manner it "reads [the] court's findings." Maj. op. slip

opinion at 3173. The majority, not the district court,

finds (reads) that "Mr. Rippy ... knew enough about the

harassment to realize that Chuck Baugh's conduct was extreme

and outrageous." Maj. op. slip opinion at 3173. For the

panel majority, therefore, "constructive knowledge" is

sufficient, contrary to its own statement of Texas law, to

establish ratification as a matter of law. See maj. op. at

3172 ("In regard to ratification, of course, it is evident

that before one can ratify an act so that it becomes his

own, he must know of the act with which he is charged."). 

 

6See Brief for Prunty at 11 (In her statement of issues

presented on appeal, Mrs. Prunty stated: "Arkansas Freightways

is also liable for Chuck Baugh's actions in his intentional

infliction of emotional distress of Mildred Prunty in that his

actions were in furtherance of his employer's business for which

he was hired and that was the supervision of employees in the

Paris terminal."), 18-19. The majority indicates that "the

ratification question is properly before this Court" because (1)

AFI acknowledged that Prunty had proffered the issue before the

district court; (2) Prunty raised the issue during oral

arguments; and (3) Prunty explained in her brief that Rippy knew

of the sexual harassment but did nothing to stop it. See maj.

op. slip opinion at 3170 n. 11. None of these reasons forms a

basis for appellate review. First, this Court brought up the

issue of ratification—not Mrs. Prunty. Second, although counsel

for AFI stated during oral argument that Mrs. Prunty raised the

issue of ratification before the district court, he also stated

during oral argument that "[t]hat issue [—ratification—] was

never raised by [Mrs. Prunty] in her pleadings." Third, the

record clearly indicates that ratification was not an issue

before the district court. See supra nn. 2-5. Fourth, an

isolated statement in Mrs. Prunty's brief stating that Rippy knew

of the sexual harassment is insufficient to preserve this point

on appeal. See Fed.R.App.P. 28(a). 

28

appeal.6 See Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.1990)
29

(Stating that appellant abandoned issue on appeal, because

"Fed.R.App.Proc. 28(a)[ (5) ] requires that the appellant's [brief]

contain the reasons he deserves the requested relief "with

citations to the authorities, statutes and parts of the record

relied on.' "), cert. denied, 498 U.S. 966, 111 S.Ct. 427, 112

L.Ed.2d 411 (1990). Nonetheless, the majority reverses on the

basis of ratification.

Accordingly, I respectfully dissent from Part II.B. of the

majority opinion.