Supreme Court of Texas

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No. 23-0376

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Fossil Group, Inc.,

Petitioner,

v.

Nicole Harris, 

Respondent

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fifth District of Texas

═══════════════════════════════════════

Argued March 21, 2024

JUSTICE DEVINE delivered the opinion of the Court.

JUSTICE BLACKLOCK filed a concurring opinion.

JUSTICE YOUNG filed a concurring opinion, in which Chief Justice 

Hecht joined.

The central question in this workplace sexual-harassment case is 

whether the summary-judgment record bears any evidence that a

company knew or should have known its employee was being harassed 

and failed to take prompt corrective action. The court of appeals 

reversed the trial court’s judgment for the company, holding that the 
2

employee’s testimony that the company failed to respond to an email she 

allegedly sent through an anonymous reporting system is some evidence 

of the company’s knowledge and failure to act.1 

The parties dispute whether the company received the email, but 

we hold that even if it did, there is no evidence that its subsequent 

actions were not prompt and remedial. Mere days after sending the

putative email, the employee voluntarily resigned, and she has not 

identified any instances of interim harassment. The following week, the 

store manager met with the employee after learning about the

harassment from another source and then immediately reported the 

matter to human resources. By the end of the month, the company had 

fired the harasser. We also hold that the employee did not raise a fact 

issue that the company knew or should have known about the 

harassment before the date of the email. Accordingly, we reverse the 

court of appeals’ judgment and render judgment reinstating the trial 

court’s take-nothing judgment.

I

Fossil Group, Inc. hired Nicole Harris to work as a seasonal sales 

associate at its store in Frisco, Texas. Harris started in November 2018; 

Fossil promoted her to a regular sales associate in January 2019; and 

she worked in that position until she resigned in early May 2019. 

1 682 S.W.3d 896, 905 (Tex. App.—Dallas 2023).
3

During Harris’s brief term of employment, Carey Zaborowicz was the

store manager and Leland Brown was an assistant store manager. 

Shortly after Harris was hired, Brown began exchanging 

social-media messages with her. Brown found her profile because 

Harris kept it public to promote her modeling career. On December 3, 

Brown sent her obscene and sexually explicit videos and photos of 

himself with sexually suggestive messages. Harris blocked him on social 

media, but at his request, she later unblocked him, and the exchange 

continued.

From December to April, Brown sent Harris social-media 

messages about her appearance and posted emojis on her modeling 

photos. At work, according to Harris, Brown would comment on her 

appearance, brush up against her, take pictures of her from behind, and 

follow her to her car. In April, Harris again blocked Brown on social 

media, and after April 16, she received no further messages. Harris told 

two seasonal sales associates about Brown’s conduct. But she did not 

feel comfortable telling someone with authority over him and did not 

speak to management about the harassment until after she resigned.2

Around the same time, Brown also sexually harassed K.K., 

another sales associate, through social media.3 K.K. later expressed 

discomfort to a “Third Key” employee, a store keyholder whose role is to

2 Harris acknowledged that while employed at Fossil, she was aware of 

the company’s policy against sexual harassment, the mechanisms to report 

harassment, and where to find additional details about the policy. 

3 Brown admitted that between January and April, he sent K.K. more 

than ten messages expressing how he “wanted to do sexual things with her or 

tell her she looked good.” 
4

assist the store manager. At the end of April, the Third Key employee

told Zaborowicz that Brown might be sexually harassing K.K.

Zaborowicz asked the Third Key employee to tell K.K. to come talk to 

her, but K.K. did so only after Zaborowicz reached out to her directly in 

early May.4

In February, Harris became dissatisfied with her work schedule. 

During that time, Harris was working two retail jobs—morning shifts 

at Athleta and afternoon shifts at Fossil5—along with taking college 

courses and babysitting. Harris wanted to switch to morning shifts at 

Fossil to avoid working with Brown. But she did not mention this reason 

to management and was unaware that Fossil did not schedule sales 

associates for weekday mornings because sales were not part of the job 

responsibilities for those shifts.

In April, Harris worked only four shifts at Fossil—on April 3, 6, 

19, and 28. Then, on May 2, Harris sent the following email to store 

management: 

I’m having trouble with my schedule and my jobs putting 

everything together. I’m very sorry to do this but I need to 

make Saturday [May 4] my last day with the team. I’m 

getting over exhausted and putting a lot of stress on myself 

trying to juggle 3 jobs and finish school to graduate. 

Her last and only shifts in May were on May 3 and 4. 

4 Zaborowicz explained that she did not immediately reach out to K.K.

or report the possible harassment in late April because K.K. had told the Third 

Key employee in confidence and Zaborowicz wanted K.K. to feel comfortable 

coming to her as the manager.

5 Harris worked six afternoon shifts in February and thirteen in March.
5

After sending her resignation email, Harris met with K.K. and 

discussed Brown’s harassing conduct. On May 8, another Third Key 

employee reported to Zaborowicz that K.K. had mentioned Brown’s 

misconduct and that Harris might also be a victim. Zaborowicz 

immediately called Harris, who described the sexually explicit content 

Brown had sent her. The next day, Zaborowicz met with both Harris 

and K.K. in person and reported the harassment to human resources the 

same day. After an investigation, Fossil fired Brown at the end of that 

month. In the interim, neither Harris nor K.K. worked with Brown 

because Harris had voluntarily resigned and K.K. was studying abroad. 

Harris sued Fossil for a hostile work environment under 

Chapter 21 of the Texas Labor Code.6 Harris alleged that in “late April 

2019,” she “began efforts to formally report” Brown’s conduct and “sent 

an email in response to an in-store company survey in which she stated 

she felt she was being sexually harassed” but “received no response.” 

When Fossil deposed Harris, she claimed she sent the email through 

Fossil’s anonymous reporting system, not in response to a survey.7

Fossil moved for traditional and no-evidence summary judgment. 

Among other grounds, Fossil argued that there is no evidence it knew or 

should have known about the harassment but failed to remedy the 

situation and, to the contrary, the undisputed facts conclusively 

6 Harris has conceded that Fossil is not vicariously liable for Brown’s 

actions because he “was not a supervisor in the sense he did not have authority 

on his own to alter her conditions of employment.”

7 Harris testified that the email described the sexually explicit nature 

of the videos and pictures and Brown’s conduct of “taking pictures of me in the 

store without me even noticing” and “brushing up against me.”
6

establish that Fossil took prompt remedial action. Specifically, Fossil 

cited evidence that: (1) a report from the anonymous reporting system 

shows no record of any complaints related to its Frisco store while Harris

was employed; (2) the company learned about Brown’s misconduct only 

after Harris resigned; and (3) it then took prompt remedial action by 

proactively reaching out to Harris and subsequently firing Brown. 

In response, Harris asserted that Fossil knew or should have 

known about the harassment because (1) Harris had told two coworkers 

and K.K. that Brown was harassing her; (2) two Third Key employees 

learned of Brown’s harassing conduct through K.K.; and (3) the store 

manager, Zaborowicz, found out about Brown’s misconduct from the 

Third Key employees in late April and early May. The response also 

states that Harris “believes she sent” the email reporting the 

harassment “[i]n late April” but “she cannot locate that email.” For

support, Harris attached the transcript of her own deposition as well as 

testimony from Brown and Zaborowicz.8

The trial court granted Fossil’s motion for summary judgment, 

and Harris appealed. The court of appeals reversed, holding that 

Harris’s testimony about her email is some evidence that Fossil knew or 

should have known about Brown’s misconduct.9 The court then 

8 At the time of her response, Harris had a pending motion for leave to 

file her third amended petition. In that petition, Harris pleaded additional 

facts based on Brown’s deposition testimony that his previous employer, Old 

Navy, had fired him for sexual harassment. Harris also relied on these facts 

as summary-judgment evidence “that a prudent employer knew or should have 

known” about Brown’s sexual misconduct. The trial court struck her amended 

petition as untimely, and Harris has not challenged that ruling on appeal.

9 682 S.W.3d 896, 904-05 (Tex. App.—Dallas 2023). 
7

summarily stated that “Fossil took no remedial action after Harris sent 

the email.”10 Fossil petitioned this Court for review, which we granted.11

II

Section 21.051 of the Texas Labor Code, which is modeled on 

Title VII of the Civil Rights Act of 1964, makes it unlawful for an 

employer to discriminate “against an individual in connection with 

compensation or the terms, conditions, or privileges of employment” 

because of sex.12 Following federal case law holding that Title VII 

10 Id. at 905.

11 In the trial court, Harris also sued Brown individually for intentional 

infliction of emotional distress. Brown filed a motion for summary judgment

on her claim, which the trial court granted. Although Harris purported to

appeal the rulings in favor of Fossil and Brown in her notice of appeal, she 

identified Fossil as the only appellee in her appellate brief, made no argument 

with respect to her claim against Brown, and prayed only that the court of 

appeals reverse the judgment as to Fossil. Brown nevertheless filed a response

brief urging that Harris had waived any error as to his favorable judgment and 

asking that it be affirmed. In its opinion, the court of appeals did not mention 

Harris’s claim against Brown or list him as a party. See id. at 896. The court 

of appeals’ judgment lists Brown as an appellee but reverses only “the trial 

court’s order granting Fossil’s motion for summary judgment” without 

mentioning the order dismissing the claim against Brown. We conclude that 

Harris waived any challenge to the trial court’s judgment with respect to 

Brown by failing to brief it. See Nall v. Plunkett, 404 S.W.3d 552, 556 (Tex. 

2013) (holding that issues not raised in a brief to the court of appeals are 

waived); see also TEX. R. APP. P. 38.1(f)–(i). We therefore treat the court of 

appeals’ judgment as having affirmed the portion of the trial court’s judgment 

dismissing Harris’s claim against Brown. Cf. Allen v. Allen, 717 S.W.2d 311, 

312 (Tex. 1986) (“The absence of any reference to pleaded alternative grounds 

of recovery does not render an order intrinsically interlocutory. All pleaded 

issues are presumed to be disposed of, expressly or impliedly, by the trial 

court’s judgment absent a contrary showing in the record.”).

12 TEX. LAB. CODE § 21.051(1); see 42 U.S.C. § 2000e-2(a)(1).
8

prohibits sexual harassment,13 we have recognized that a statutory 

cause of action for a hostile work environment14 arises when (1) an 

employee was subjected to unwelcome sexual harassment, (2) the 

employee was harassed because of his or her sex, (3) the harassment 

was so severe or pervasive as to alter the conditions of employment and 

create a hostile work environment, and (4) some basis exists for holding 

the employer liable.15 

The issue in this appeal is whether there is some basis for holding 

Fossil liable for Brown’s harassing conduct. The parties agree that, in 

13 An express purpose of Chapter 21 is to “provide for the execution of 

the policies of Title VII” as enacted and amended. TEX. LAB. CODE § 21.001(1). 

Consistent with that purpose, this Court has looked to federal law for guidance 

when applying the state act’s analogous statutory language. Waffle House, Inc. 

v. Williams, 313 S.W.3d 796, 804 & n.25 (Tex. 2010).

14 Sexual-harassment claims may also take the form of “quid pro quo 

harassment, in which employment benefits are conditioned on sexual favors.” 

Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 n.5 (Tex. 2004). 

Harris does not allege quid pro quo harassment.

15 Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 

2018); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“‘The phrase 

“terms, conditions, or privileges of employment” evinces a congressional intent 

“to strike at the entire spectrum of disparate treatment of men and women” in 

employment,’ which includes requiring people to work in a discriminatorily 

hostile or abusive environment.” (quoting Meritor Sav. Bank, FSB v. Vinson, 

477 U.S. 57, 64 (1986))); Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 

225 (Tex. App.—Austin 2010, no pet.) (noting that the purpose of a 

hostile-work-environment claim “is not to combat sexual harassment as an end 

in itself, however reprehensible such harassment may be, but to provide a 

remedy when sexual harassment rises to a level so ‘extreme’ and ‘abusive’ that 

it deprives the victim of equal opportunity in the workplace”).

The Labor Code now expressly prohibits sexual harassment, see TEX.

LAB. CODE §§ 21.141–.142, but those provisions do not apply to claims based 

on conduct occurring before September 1, 2021, see Act of May 14, 2021, 87th

Leg., R.S., ch. 172, §§ 2–3, 2021 Tex. Gen. Laws 378, 379.
9

this case, the standard for liability requires evidence that the employer 

“knew or should have known of the conduct” and failed to take prompt 

remedial action.16 In other words, an employer is liable if it is negligent

in having actual or constructive knowledge of the harassment and 

failing to take prompt remedial action to stop it.17

16 Our courts of appeals, as well as federal courts applying Title VII, 

have consistently articulated this standard for sexual-harassment claims. See, 

e.g., Johnson v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 

90 F.4th 449, 457 (5th Cir. 2024); Arredondo v. Elwood Staffing Servs., Inc., 81 

F.4th 419, 435 (5th Cir. 2023); Green v. Franklin Nat’l Bank of Minneapolis, 

459 F.3d 903, 910 (8th Cir. 2006); In re Parkland Health & Hosp. Sys. Litig., 

No. 05-17-00670-CV, 2018 WL 2473852, at *8 (Tex. App.—Dallas June 4, 2018, 

orig. proceeding); Tex. Dep’t of Fam. & Protective Servs. v. Whitman, 530 

S.W.3d 703, 710 (Tex. App.—Eastland 2016, no pet.); Smith v. Carter 

BloodCare, No. 02-12-00523-CV, 2014 WL 1257273, at *6 (Tex. App.—Fort 

Worth Mar. 27, 2014, no pet.); Twigland Fashions, 335 S.W.3d at 218.

17 See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998) (“An 

employer is negligent with respect to sexual harassment if it knew or should 

have known about the conduct and failed to stop it.”); Johnson, 90 F.4th at 457

(“When the harasser is a co-worker, ‘the negligence standard governs employer 

liability,’ and employers are only negligent if they ‘knew or should have known 

about the conduct and failed to stop it.’” (quoting Hudson v. Lincare, Inc., 58 

F.4th 222, 229-30 (5th Cir. 2023))); see also Hernandez v. Yellow Transp., Inc., 

670 F.3d 644, 651, 656 (5th Cir. 2012) (applying the “knew or should have 

known” standard in the Title VII context by looking for evidence of actual or 

constructive knowledge of the harassment); Smith, 2014 WL 1257273, at *3, 

*6-8 (same for a Chapter 21 hostile-work-environment claim).

When the harasser is a supervisor, the employer may be vicariously

liable for the supervisor’s conduct in creating a hostile work environment,

without establishing the employer’s negligence, because the employer has 

imbued such persons with “the authority to effect a tangible change in a 

victim’s terms or conditions of employment.” See Vance v. Ball State Univ., 

570 U.S. 421, 431-40 (2013); Parkland Health, 2018 WL 2473852, at *8; Smith, 

2014 WL 1257273, at *4-5. As Harris concedes in this Court, Fossil had not 

empowered Brown to hire, fire, or take other tangible employment actions 

against its employees and, therefore, was not a supervisor for purposes of her
10

Where, as here, a trial court grants a motion for summary 

judgment that raises traditional and no-evidence grounds and both 

parties present evidence, the ultimate issue is whether the nonmovant 

raised a fact issue to preclude summary judgment.18 Our review is de 

novo, and to determine if a fact issue exists, we examine the evidence in 

the light most favorable to the nonmovant, indulging reasonable 

inferences and resolving any doubts against the moving party.19

A

We first consider Harris’s email to the anonymous reporting 

system, which the court of appeals relied on to determine that a fact 

issue exists about Fossil’s knowledge of the harassment and its failure 

to respond.20 Although the parties primarily dispute whether Harris 

presented competent evidence that she sent such an email, we need not 

resolve that matter. Assuming Harris submitted an email complaint in 

Chapter 21 claim. Supra note 6; see Vance, 570 U.S. at 431 (“We hold that an 

employer may be vicariously liable for an employee’s unlawful harassment only 

when the employer has empowered that employee to take tangible employment 

actions against the victim.”); Arredondo, 81 F.4th at 433 (noting that a 

“supervisor” is the person “the employer has empowered,” not who the plaintiff 

perceives to be a supervisor). We express no opinion on whether this 

understanding of “supervisor” applies to the recently enacted 

Sections 21.141(2) and 21.142 of the Labor Code. See supra note 15.

18 See TEX. R. CIV. P. 166a(c), (i); Scripps NP Operating, LLC v. Carter, 

573 S.W.3d 781, 790 (Tex. 2019) (noting that when both parties presented

summary-judgment evidence on a hybrid motion, the varying burdens for the 

different types of motions are immaterial).

19 Scripps NP Operating, 573 S.W.3d at 790.

20 682 S.W.3d 896, 904-05 (Tex. App.—Dallas 2023).
11

“late April 2019,” there is no genuine issue of material fact that Fossil 

failed to take prompt remedial action.21

Prompt remedial action must be reasonably calculated to end the 

harassment—a fact-specific and context-dependent inquiry.22 Here, it 

is undisputed that the store manager notified human resources about 

Brown’s harassing conduct on May 9, the day after learning about it

from a Third Key employee; human resources then began an 

investigation; Fossil fired Brown at the end of May; and Brown did not 

work with Harris or K.K. during that time period. All this occurred 

approximately within a month of Harris’s late April email and was 

reasonably calculated to (and did) end any harassment by Brown.23 

21 See Gulf States Toyota, Inc. v. Morgan, 89 S.W.3d 766, 771 (Tex. 

App.—Houston [1st Dist.] 2002, no pet.) (explaining that to prevail on a claim 

for sexual harassment by a coworker, the employee bears the burden to 

establish the employer did not take prompt remedial action); cf. Hudson, 58 

F.4th at 230 (“[A]n employer is not negligent when it takes prompt remedial 

action that is reasonably calculated to end the harassment.” (internal 

quotation marks omitted)); Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 

428, 437 (5th Cir. 2005) (noting that a company on notice of sexual harassment 

may avoid Title VII liability by taking prompt remedial action).

22 River Oaks L-M. Inc. v. Vinton-Duarte, 469 S.W.3d 213, 228 (Tex. 

App.—Houston [14th Dist.] 2015, no pet.); Gulf States Toyota, 89 S.W.3d at

771; McMillon v. Tex. Dep’t of Ins., 963 S.W.2d 935, 939 (Tex. App.—Austin 

1998, no pet.); cf. Johnson, 90 F.4th at 456 (explaining that a Title VII inquiry 

of whether there was prompt remedial action is fact specific); Hudson, 58 F.4th 

at 230 (noting that prompt remedial action must be reasonably calculated to 

end the harassment to avoid Title VII liability).

23 Cf. Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 912 

(8th Cir. 2006) (noting that “[t]he firing of the harasser in a hostile work 

environment case can effectively bar a plaintiff’s claim,” although some cases 

have concluded otherwise “where the employer waited much longer than one 

month to terminate the employee”); cf. also, e.g., Johnson, 90 F.4th at 456 

(holding that an eleven-day delay to commence investigation after a complaint 
12

That the actions were taken in response to Fossil’s learning of the 

harassment from another source does not change their remedial nature, 

so long as they were sufficiently prompt from the time Fossil first 

received notice.

Although Fossil’s response did not immediately follow the late 

April email, complainants often must “tolerate some delay” for the 

employer to gauge the complaint’s credibility and the seriousness of the

situation,24 especially when a complaint is sent through an anonymous 

reporting system. Within days of sending the email, however, Harris 

voluntarily resigned on May 2 (effective May 4) without giving Fossil a 

reasonable time to address her complaint while she was still employed.25 

Her resignation also lessened the urgency for the employer to respond 

“does not demonstrate that [the employer’s] response was unreasonably 

calculated to end the harassment”); Alvarez v. Des Moines Bolt Supply, Inc., 

626 F.3d 410, 421 (8th Cir. 2010) (concluding that twenty-one days was a 

reasonable time for the employer to investigate a complaint, formulate a 

remedy, and end the harassment); Stuart v. Gen. Motors Corp., 217 F.3d 621, 

633 (8th Cir. 2000) (holding that no rational jury could conclude that a nine-day 

delay to investigate a sexual-harassment complaint was not prompt); Smith v. 

Carter BloodCare, No. 02-12-00523-CV, 2014 WL 1257273, at *8 (Tex. App.—

Fort Worth Mar. 27, 2014, no pet.) (concluding that a fifteen-day investigation 

before firing harasser was prompt remedial action).

24 Alvarez, 626 F.3d at 421 (quoting Dhyne v. Meiners Thriftway, Inc., 

184 F.3d 983, 988 (8th Cir. 1999)); see Dornhecker v. Malibu Grand Prix Corp., 

828 F.2d 307, 309 (5th Cir. 1987) (“Since the demise of the institution of 

dueling, society has seldom provided instantaneous redress for dishonorable 

conduct.”). But see TEX. LAB. CODE § 21.142 (requiring “immediate and 

appropriate corrective action,” effective September 1, 2021); supra note 15.

25 Cf. Lopez v. Whirlpool Corp., 989 F.3d 656, 664 (8th Cir. 2021) 

(holding that when the employee resigned four business days after notifying 

the employer, she did not give her employer reasonable time to address her 

complaint).
13

to prevent exposing her to ongoing or future harassment and provides 

further support for the conclusion that Fossil’s action of firing Brown 

one month later was sufficiently prompt as a matter of law.

Harris acknowledged that no one at Fossil terminated her 

employment or took any adverse employment action against her, and 

she did not plead or allege retaliation or constructive discharge.26 In the 

absence of a constructive discharge, a plaintiff can “make out a statutory 

sexual-harassment claim” by “show[ing] that she remained in her 

position and endured a hostile work environment.”27 After her late April 

email, however, Harris worked only three more days—on April 28,28

May 3, and May 4—and she has provided no evidence of a hostile work 

environment on those days. And by then, Harris had blocked Brown 

from her social-media account—the primary source of harassment. 

Depending on the circumstances and seriousness of the alleged 

harassment, an employer may need to take intermediate steps to 

address the situation while it evaluates a complaint.29 In this 

26 A sexual-harassment claim based on constructive discharge requires 

“proof that the employer made the working conditions so intolerable that a 

reasonable person would feel compelled to resign.” Waffle House, Inc. v. 

Williams, 313 S.W.3d 796, 805 (Tex. 2010). 

27 Id. at 805-06.

28 The record does not indicate whether the email in “late April” was 

sent before or after April 28.

29 See Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) (describing 

the obligation as comprising two parts: “the temporary steps the employer 

takes to deal with the situation while it determines whether the complaint is 

justified” and “the permanent remedial steps the employer takes once it has 

completed its investigation”); Skidmore v. Precision Printing & Packaging, 

Inc., 188 F.3d 606, 615 (5th Cir. 1999) (“What is appropriate remedial action 
14

procedural posture, however, the onus is on Harris to raise a fact issue 

that interim steps were needed for Fossil to satisfy its obligation.30 

Harris did not meet that burden. Not only was there no evidence of any 

harassment on April 28, May 3, or May 4, but also the record does not 

indicate that Brown worked with Harris on those days.

We therefore hold that Harris did not raise a genuine issue of 

material fact that Fossil failed to take prompt remedial action following 

her late April email. The court of appeals erred in concluding that 

“Fossil took no remedial action after Harris sent the email.”31

B

We now turn to whether there is evidence that Fossil had actual 

or constructive knowledge of the harassment—thereby triggering the 

obligation to take prompt remedial action—before the late April email.32 

An employer is put on notice of harassment when “a person within 

the organization who has the ‘authority to address the harassment 

will necessarily depend on the particular facts of the case—the severity and 

persistence of the harassment, and the effectiveness of any initial remedial 

steps.” (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 479 (5th Cir. 1989))); 

cf. Johnson v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 90 

F.4th 449, 456-57 (5th Cir. 2024) (noting that the employer took steps so that 

the complainant did not have to interact with her harasser while an 

investigation was pending, including by relocating the harasser’s workspace 

and instructing the harasser not to have contact with or be around the 

complainant); McMillon v. Tex. Dep’t of Ins., 963 S.W.2d 935, 939 (Tex. App.—

Austin 1998, no pet.) (noting that the employer placed the alleged harasser on 

administrative leave while the investigation was pending).

30 See TEX. R. CIV. P. 166a(i).

31 682 S.W.3d 896, 905 (Tex. App.—Dallas 2023).

32 We have had no occasion to consider what constitutes actual or 

constructive knowledge for purposes of imposing liability on an employer under 
15

problem’ or an ‘affirmative duty’ to report harassment learns of the 

harassment in question.”33 A person who has the “authority to address 

the harassment problem” will often be in “higher management.”34 And 

an individual has an “affirmative duty” to report harassment, for 

Section 21.051 for a hostile-work-environment claim. To argue that it lacked 

actual or constructive knowledge, Fossil relies primarily on Title VII case law 

from the United States Court of Appeals for the Fifth Circuit. Harris neither 

contests Fossil’s use of federal precedent nor proposes an alternative standard. 

Accordingly, we consider this issue guided by Fifth Circuit case law. See Tex. 

Tech Univ. Health Scis. Ctr.–El Paso v. Niehay, 671 S.W.3d 929, 937 (Tex. 

2023) (recognizing that “federal–state synchronization” and “consistency” 

between Chapter 21 and federal discrimination law are “desirable, and while 

federal authorities do not bind us, they frequently assist us in our independent 

obligation to construe Texas law”); San Antonio Water Sys. v. Nicholas, 461 

S.W.3d 131, 136-37 (Tex. 2015) (“We look to relevant federal law for guidance 

when the relevant provisions of Title VII are analogous.”); supra note 13; see 

also Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020) (noting 

that our adversarial system generally depends on the parties to frame the 

issues for decision).

33 Abbt v. City of Houston, 28 F.4th 601, 607 (5th Cir. 2022) (quoting 

Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998)); see Johnson, 

90 F.4th at 457 (“[T]he key to whose knowledge may be imputed to the 

employer is remedial power: There is no actual knowledge until someone with 

authority to address the problem is notified.” (alteration in original) (quoting 

Sharp v. City of Houston, 164 F.3d 923, 929-30 (5th Cir. 1999))).

34 Sharp, 164 F.3d at 929 (“A title VII employer has actual knowledge 

of harassment that is known to ‘higher management’ or to someone who has 

the power to take action to remedy the problem.”); see Kramer v. Wasatch Cnty. 

Sheriff’s Off., 743 F.3d 726, 755 (10th Cir. 2014) (“In assessing whether an 

employer was negligent in dealing with known harassment, ‘[a]ctual 

knowledge will be demonstrable in most cases where the plaintiff has reported 

harassment to management-level employees.’” (quoting Adler v. Wal-Mart 

Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998))); Mackey v. U.P. Enters., Inc., 

935 S.W.2d 446, 457 (Tex. App.—Tyler 1996, no writ) (“[A]n employee can 

demonstrate that her corporate employer knew of the harassment by showing 

that she complained to ‘higher management’ of the harassment[.]” (quoting 

Bundy v. Jackson, 641 F.2d 934, 943 (D.C. Cir. 1981))).
16

example, when an employer’s policy provides that person with “the 

authority to accept harassment complaints” and “place[s] an affirmative 

duty on him to pass such information up the chain of command.”35

The constructive-knowledge inquiry likewise homes in on these 

same “appropriate persons” within the organization but asks whether 

they “should have known” of the harassment through the exercise of 

reasonable care.36 In effect, for an employer to have constructive 

35 Williamson, 148 F.3d at 466 & n.1; see id. at 466 (“When an 

organization designates a particular person or persons to receive harassment 

complaints, it sends a clear signal that those persons have the authority to 

accept notice of harassment problems.”). Other United States Courts of 

Appeals have taken similar approaches. See, e.g., Wilson v. Moulison N. Corp., 

639 F.3d 1, 10 (1st Cir. 2011) (“If an employer has designated a particular 

individual to accept notice of harassment, notice to that individual ordinarily 

will satisfy Title VII’s knowledge requirement vis-à-vis employer liability.”);

Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir. 2009) (imputing knowledge if a 

“co-worker has an official or strong de facto duty to act as a conduit to 

management for complaints about work conditions” (quoting Torres v. Pisano, 

116 F.3d 625, 636-37 (2d Cir. 1997))); Huston v. Procter & Gamble Paper Prods.

Corp., 568 F.3d 100, 107-08 (3d Cir. 2009) (applying agency principles to 

impute knowledge when an employee is designated as the “point person” for 

receiving harassment complaints “based on the specific mandate from the 

employer to respond to and report on sexual harassment”); Breda v. Wolf 

Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000) (imputing knowledge if an 

employee reports suspected sexual harassment to an individual specifically

designated by the company policy to receive harassment complaints); Young v.

Bayer Corp., 123 F.3d 672, 675 (7th Cir. 1997) (focusing on, for the purpose of 

imputing knowledge, “whether the information comes to the attention of 

someone who ought by specification of his duties or, failing that, general norms 

of management to do something about it, either directly or by referring the 

matter to some other corporate employee”).

36 Arredondo v. Elwood Staffing Servs., Inc., 81 F.4th 419, 435 (5th Cir. 

2023) (“Ultimately, a company can only be said to have constructive knowledge 

of a hostile work environment where ‘the appropriate persons within’ the 

company, meaning someone with ‘remedial power over the harasser[,]’ ‘knew 

or should have known’ about the situation.” (quoting Sharp, 164 F.3d at 930)). 
17

knowledge, the harassment must have been “so open and pervasive” 

that the appropriate persons should have known of it had the employer 

“opened its corporate eyes.”37 However, “[a] holding that an employer 

had constructive knowledge will be less likely if it had in place a 

procedure by which employees could report instances of harassment.”38

We cannot conclude there is evidence that any “appropriate 

persons” within Fossil knew or should have known about Brown’s 

harassing conduct before late April. Fossil’s employment policy 

designates the employee’s manager (or another member of management 

if the employee is uncomfortable contacting her manager) and members 

of its human resources department as the individuals to receive 

harassment complaints. The policy also places an affirmative duty on 

managers and supervisors who suspect harassment is occurring, receive 

a complaint, or witness harassing behavior “to report such suspected 

harassment to Human Resources.” But here, the store manager 

Zaborowicz learned about Brown’s harassing conduct from Third Key 

employees only at the end of April and beginning of May. Harris also 

admitted she did not tell anyone in management about the harassment 

until after she resigned in early May and does not claim anyone in 

37 Id. (quoting Sharp, 164 F.3d at 930); Sharp, 164 F.3d at 930 (“Of 

course, harassment by definition always will be open and pervasive as to some 

group, if only as to the harasser and victim. But that is not enough. To impute 

constructive knowledge to the employer, we must find constructive knowledge 

on the part of someone whose actual knowledge also would impute knowledge 

to the employer.”).

38 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 656 (5th Cir. 2012).
18

human resources knew about the harassment before the late April

email.

There is some evidence that certain Fossil employees knew about

Brown’s harassing conduct before late April, including K.K., two other 

sales associates, and at least one Third Key employee. But Harris did 

not adduce evidence that any of these individuals were authorized to 

address the harassment or were managers or supervisors that had an 

affirmative duty under Fossil’s employment policy to receive 

harassment complaints and report them up the chain of command. And

Fossil submitted evidence to the contrary, including (1) corporate job 

descriptions for Third Key employees and sales associates, neither of 

which described or imposed any such authority or duty for those roles,

and (2) an affidavit from its human resources manager, who averred 

that a Third Key employee “has no supervisory responsibility over any 

employees.”39

In sum, there is no evidence to raise a fact issue that any 

“appropriate persons” within Fossil knew about the harassing conduct 

before late April or that Fossil would have known of the harassment, 

which mostly occurred off-site through social media, had it opened its 

corporate eyes.

39 Harris also argues that Fossil should have known about Brown’s 

harassing conduct because he was fired for sexual harassment by his previous 

employer, Old Navy. See supra note 8. In his deposition, Brown admitted he 

would have informed Fossil about the reasons for his separation from Old Navy

if he had been asked in his job interview. But Fossil presented evidence that 

when Brown interviewed, he represented in his resume that he was currently 

employed by Old Navy. Fossil therefore had no reason to ask why he had left 

that job. And Harris presented no other evidence that Fossil had reason to

know about Brown’s sexually harassing conduct at Old Navy.
19

* * * 

Our holding today does not minimize the seriousness of Brown’s 

misconduct in sending unwanted sexually explicit social-media content

or any anguish Harris may have suffered. All agree Brown’s harassing 

conduct was reprehensible. But Harris failed to adduce evidence to hold 

her employer, Fossil, liable for Brown’s actions. We therefore reverse 

the court of appeals’ judgment and render judgment reinstating the trial 

court’s take-nothing judgment.

 

John P. Devine 

 Justice 

OPINION DELIVERED: June 14, 2024