1The district court dismissed the claims against Mr. Baugh

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

complaint.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-4338

_____________________

MILDRED PRUNTY

Plaintiff-Appellant,

versus

ARKANSAS FREIGHTWAYS, INC., and

CHUCK BAUGH

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________________________________________________

(August 4, 1993)

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

JOHNSON, Circuit Judge: 

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

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

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

extreme and outrageous sexual harassment by her supervisor, Chuck

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

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

intentional infliction of emotional distress and violations of
 

242 U.S.C. § 2000e et seq.

 

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

Supp. 1992).

2

Title VII2 and the Texas Commission on Human Rights Act3

("article 5221k"). Although the district court found that Mrs.

Prunty had suffered severe emotional distress at the hands of Mr.

Baugh, it held that AFI was not liable for the damages which

flowed therefrom. The court also found that AFI was responsible

for the sexual harassment of Mrs. Prunty, having violated Title

VII. However, the court held that neither Title VII nor article

5221k authorized the type of relief which Mrs. Prunty sought. We

affirm in part and reverse and remand in part.

I. Facts and Procedural History

Arkansas Freightways, Inc. is a trucking company which has

numerous terminals throughout several states, including Texas. 

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

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

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

Paris operation. Among other things, she interviewed applicants

for truck-driver positions, made recommendations as to which

applicants should be hired, dispatched drivers, ensured that the

trucks were maintained, performed administrative functions, took

care of customer service, and, if necessary, drove trucks. On

July 13, 1987, AFI promoted Mrs. Prunty to operations supervisor

and made her a salaried employee. 
 

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

the Paris terminal just once per week.

 

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

From the beginning of her employment until as late as

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

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

AFI hired Chuck Baugh as the terminal manager for the Paris

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

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

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

drivers and dock workers. 

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

supervisor, Mr. O.D. Rippy. Mr. Rippy, the vice president of

AFI's southwestern operations, worked in the Dallas office. Mrs.

Prunty telephoned Mr. Rippy several times to discuss Baugh's

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

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

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

husband also telephoned Mr. Rippy to inform him of the abuse

which Mrs. Prunty was experiencing. Mr. Prunty told Rippy about

the remarks and gestures which Mr. Baugh had made to and about

Mrs. Prunty and asked him to put an end to the situation. 

However, Mr. Rippy informed the Pruntys that Mr. Baugh and Mrs.

Prunty would have to work out the problems themselves. 
 

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

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

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

president. In this letter, she stated that Mr. Baugh had made

rude and obscene comments to her and about her. As a result of

this letter, Mr. Rippy, the vice president who had previously

ignored Mr. and Mrs. Prunty's pleas for help, was ordered to

investigate the Paris office to determine whether Mrs. Prunty's

allegations were meritorious. Rippy then determined that the

allegations were, indeed, legitimate. He had the workers at the

Paris terminal to write down the types of statements which Baugh

had made about Prunty. Mr. Rippy then faxed those statements to

AFI's office in Arkansas. Chuck Baugh was promptly dismissed.

Because Rippy faxed the statements, additional AFI employees

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

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

the Arkansas employees who read the statements. Mrs. Prunty

testified that when she learned that Scott Harris knew about the

obscenities uttered about her, she felt so humiliated and

degraded that she could no longer work with or for him. Prunty

therefore resigned her position as operations supervisor6 and

found employment in Dallas with the United States Postal Service. 
 

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.

5

Prunty brought this cause of action in Texas state court,

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

district court found that Baugh's conduct was intentional,

offensive, extreme, and outrageous; the court further held that

Baugh's conduct created an abusive, hostile, and offensive

working environment. The court decided that the sexual

harassment was so pervasive that AFI was charged with

constructive knowledge thereof. Further, finding that Mr. Rippy

actually knew of the sexual harassment, the court found that

Rippy had done nothing to remedy the problem prior to April

1989——when Prunty contacted AFI's president.7 The district court

also determined that Mrs. Prunty had, indeed, suffered severe

emotional distress as a result of Baugh's conduct and that Prunty

had successfully established a Title VII claim against AFI.

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

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

could not be held liable for the intentional infliction of
 

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. 

 

9Mrs. Prunty has not questioned this finding.

6

emotional distress because the court determined that Baugh had

not acted within the course and scope of his employment.8

Finally, the court denied Mrs. Prunty's requests for compensatory

and punitive damages under Title VII and article 5221k because it

concluded that such damages could not be recovered under those

provisions.

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

conclusions that Title VII and article 5221k disallow the

recovery of compensatory and punitive damages. She also

challenges the district court's holding that AFI could be liable

for Baugh's actions only if Baugh acted within the course and

scope of his employment.

II. Discussion

A. Title VII and Article 5221k Damages

Mrs. Prunty sought damages for the differences in wages and

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

Service. She also sought damages for the travel expenses she

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

court, however, determined that Mrs. Prunty presented no evidence

of wage or benefit differentials.9 The court further decided

that Title VII and article 5221k do not authorize the grant of

compensatory and punitive damages under their provisions. The
 

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

district court's interpretation of those statutes was a legal

conclusion which this Court would usually review de novo. Palmco

Corp. v. American Airlines, Inc., 983 F.2d 681, 684 (5th Cir.

1993). However, we need not address the propriety of the

district judge's conclusions, for our review of the record

reveals that Mrs. Prunty did not present any evidence of damages

whatsoever. 

It is truistic, indeed elementary, that one who seeks

compensatory damages must present evidence of those damages. DAN

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

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

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

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

deny the monetary relief requested. Thus, in this case, Mrs.

Prunty's failure to prove damages precluded her recovery of those

damages, regardless of whether Title VII and/or article 5221k

authorized the type of damages she requested.10 We therefore

affirm the district court's denial of the requested relief under

Title VII and article 5221k, albeit for reasons other than those

given by the district court. 

B. Ratification
 

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. 70 S.W.2d 397, 402-03, 406

8

The district court concluded that an employer can be held

liable for the intentional torts of its employee only when the

employee acts within the course and scope of his employment and

when the act furthers the object for which the employee was

hired. This legal conclusion is subject to de novo review. 

Palmco Corp., 983 F.2d at 684. 

A review of Texas law reveals quite readily that the

district court erred in its legal conclusion. The law has been

well-settled in Texas for well over a century that if an employer

or a manager for an employer ratifies11 or approves the

intentional, malicious, or grossly negligent acts of an agent,

the employer may be liable, not only for compensatory damages,

but also for exemplary damages.12 Purvis, 595 S.W.2d at 104; 
(Tex. 1934). 

Outside the respondeat superior realm, the scope of

employment requirement arises only in one context. An employer

may be held liable for exemplary damages for the malicious or

grossly negligent acts of its manager only if that manager acted

within the scope of his or her employment. No scope of

employment requirement exists in other non-respondeat superior

situations. Hence, Texas courts have repeatedly and consistently

held that an employer is liable for exemplary damages because of

the willful acts of its agents if, but only if:

(a) the principal authorized the doing and the manner

of the act, or

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

in employing him, or

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

was acting in the scope of employment, or

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

or approved of the act.

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

King v. McGuff, 234 S.W.2d 403, 404 (Tex. 1950) (emphasis

added)); see also Ft. Worth Elevators Co. v. Russell, 70 S.W.2d

397, 404-06 (Tex. 1934).

9

King, 234 S.W.2d at 404; Ft. Worth Elevators Co., 70 S.W.2d at

404-06; Gulf, Colorado and Santa Fe Ry. Co. v. Reed, 15 S.W.

1105, 1107 (Tex. 1891); Hays v. Houston and Great Northern R.R.

Co., 46 Tex. 272 (Tex. 1876); Shearson Lehman Hutton, Inc. v.

Tucker, 806 S.W.2d 914, 925 (Tex. App.——Corpus Christi 1991, writ

dism'd w.o.j.); Al Parker Buick Co. v. Touchy, 788 S.W.2d 129,

130 (Tex. App.——Houston [1st Dist.] 1990); Group Hospital

Services, Inc. v. Daniel, 704 S.W.2d 870, 877 (Tex. App.——Corpus

Christi 1985); see also Hitt v. East Texas Theatres, Inc., 203

S.W.2d 963, 969 (Tex. Civ. App.——Texarkana 1947) (Finding that

the employee had not acted within the scope of his employment,
10

the court then turned to the question of whether the employer had

ratified the employee's acts). 

Very few Texas appellate courts have discussed ratification

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

question have decided that ratification may occur when the

employer or its vice-principal confirms, adopts, or fails to

repudiate the acts of its employee. Hinote v. Oil, Chemical and

Atomic Workers International Union, AFL-CIO, Local 4-23, 777

S.W.2d 134, 141 (Tex. App.——San Antonio 1989, writ denied);

K-Mart No. 4195 v. Judge, 515 S.W.2d 148, 153, 154 (Tex. Civ.

App.——Beaumont 1974, writ dism'd w.o.j.). The San Antonio Court

of Appeals accepted a trial court's definition of ratification in

Hinote:

"RATIFICATION" means the adoption, confirmation or

failure to repudiate prior unlawful acts which were not

legally binding at a time when the [defendant] had the

right and knowledge of facts necessary to repudiate

such conduct; but which, by ratification or by the

failure to repudiate, become the acts of the defendant.

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

Judge that since the defendant company's manager had not

repudiated the intentional, tortious acts his employees, the

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

Judge, 515 S.W.2d at 153, 154.

Additionally, the Texas Supreme Court has determined that in

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

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

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

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

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

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.).

 

14For a plaintiff to prevail on an intentional infliction of

emotional distress claim in Texas, he or she must prove 1) that

the defendant acted intentionally or recklessly, 2) such conduct

was extreme or outrageous, 3) the conduct caused the plaintiff

emotional distress and 4) such emotional distress was severe. 

11

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 generally about Baugh's harassment of

Prunty and took no action to end the harassment. Until Mrs.

Prunty contacted AFI's president, Mr. Garrison, Rippy did

absolutely nothing about the sexual harassment. Indeed, Mr.

Rippy only investigated Prunty's allegations after he was ordered

to do so by a superior officer. Applying these facts to Texas'

definition of ratification clearly reveals that Mr. Rippy

ratified Mr. Baugh's infliction of emotional distress upon Mrs.

Prunty. We therefore hold that the district court erred in

denying Mrs. Prunty damages based upon her intentional infliction

of emotional distress claim.14 
Mitre v. Brooks Fashions Stores, Inc., 840 S.W.2d 612, 620 (Tex.

App.——Corpus Christi 1992); Thomas v. Pankey, 837 S.W.2d 826, 830

(Tex. App.——Tyler 1992); McAlister v. Medina Electric

Cooperative, Inc., 830 S.W.2d 659, 665 (Tex. App.——San Antonio

1992, writ denied); Hammond v. Katy Independent School District,

821 S.W.2d 174, 179 (Tex. App.——Houston [14th Dist.] 1991). Mrs.

Prunty introduced evidence of each of these elements, and the

district court found that each such element existed. Arkansas

Freightways has not questioned the court's findings. 

-12-

III. Conclusion

Because Mrs. Prunty failed to introduce evidence of her

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

VII and article 5221k issues. Clearly without such evidence of

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

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

As to the intentional infliction of emotional distress

claim, however, the district court failed to apply the facts

which he found——Rippy knew of the sexual harassment but failed to

remedy the situation——to applicable Texas law. Such was error. 

Applying those facts to Texas law compels the conclusion that Mr.

Rippy ratified Baugh's actions, thereby subjecting AFI to

liability for actual and exemplary damages. This Court must

therefore REVERSE and REMAND the intentional infliction of

emotional distress claim to the district court for the assessment

of damages.

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

in part:
 

15 I join the majority in their revulsion of Chuck Baugh's conduct,

which was more than adequately proven below. My disagreement with the

majority opinion lies in the method by which it imposes liability; that is, by

changing Mrs. Prunty's only viable appellate argument))course and scope of

employment))to an appellate point that she did not contend))ratification. See

maj. op. at 5, 6 n.8 (acknowledging that Mrs. Prunty challenges the district

court's finding that Mr. Baugh had not acted within the course and scope of

employment, but disposes of the case on other issues). 

 

16 Mrs. Prunty's claim that Arkansas should have investigated and

determined the cause of the problems between her and Mr. Baugh is the closest

that Prunty comes to making a ratification argument. See Record on Appeal,

vol. 1, at 5 (Plaintiff's Original Petition) ("Arkansas Freight Way failed to

take any corrective action after they were notified of the Plaintiff's

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

Chuck Baugh's [conduct] but Arkansas turned a deaf ear . . . . [A]ny

reasonable employer would investigate to determine what is the cause of the

problems."). Prunty's contention that Arkansas breached its duty to

investigate her complaints is better characterized as a claim of negligence,

rather than ratification. "Ratification" is

the adoption, confirmation or failure to repudiate prior unlawful

acts which were not legally binding at a time when the [defendant]

had the right and knowledge of facts necessary to repudiate such

conduct; but which, by ratification or by the failure to

repudiate, become the acts of the defendant.

Maj. op. at 10. "Actionable Negligence" is defined as "[t]he breach or

nonperformance of a legal duty, through neglect or carelessness, resulting in

damage or injury to another. It is failure of duty, omission of something

which ought to have been done, or which reasonable man, guided by

considerations which ordinarily regulate conduct of human affairs, would or

would not do." Black's Law Dictionary 29 (6th ed. 1990). By requiring

knowledge of facts necessary to repudiate unlawful conduct, ratification

requires a higher standard of proof than actionable negligence. The record

clearly demonstrates that Mrs. Prunty never argued that Mr. Rippy knew of

facts about Mr. Baugh's unlawful conduct necessary to repudiate such conduct,

but only that Mr. Rippy had enough information to conduct an investigation. 

See infra notes 3 & 4.

 

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

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

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

stated:

I know you are a busy man and the problems you face each day

are tremendous but the situation here at Paris has come to be a

The majority imposes liability based on its holding that

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

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

emotional distress upon Mrs. Prunty."15 Maj. op. at 11. 

However, Mrs. Prunty did not plead ratification.16 Because her

pleadings did not encompass ratification, Mrs. Prunty did not

intend to, nor did she, prove ratification.17 She did not argue
real problem. As you know in the past we have had a few problems

but we were able to pull together and work things out. I was all

excited about the growth and expansion at our terminal and

welcomed Chuck Baugh aboard as Terminal Manager with great

expectations. Chuck came across to us all as a leader and with

all the experience and abilities it takes to be one.

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

become a bigger one every [sic] since. I have been trying to work

with Chuck on many things and I want to work with Chuck but I want

him to have as much respect for me as I have shown for him.

He has made sarcastic remarks as to why he was hired as

Terminal Manager saying "If you had been doing your job they

wouldn't have had to hire me." He also has said "As a `woman' I

would like to see you make it in this business as a [sic]

Operations Supervisor." I use [sic] to feel secure in my job with

Arkansas Freightways but Chuck has threatened my job on several

occasions in the last five weeks.

Our relationship has deteriated [sic] to the point where we

are unable to peacefully discuss matters. He has an abusive

language (not cursing) it is the tone of voice he uses. I have

been trying to do as you ask me to and do what ever he asks me to

do but things are not working out as well as expected.

His attitude toward his job is effecting [sic] each and

everyone of us negatively at Paris.

Please help!

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

I am reluctant to write you concerning the problems I am

having with the local Terminal Manager, Chuck Baugh. I sent a

letter to Mr. Rippy concerning this some months back. I had no

reply to this letter (copy attached). If something had been said

then maybe things would not have progressed as they have. Chuck

has went beyond the limits of professionalism by making rude and

obscene comments about me personally and about me and some of the

other people that work at the local terminal. I have witnesses to

this effect. He has also told these obscene things about me to

another member of management at a terminal in our area.

He is continually putting me down as a woman in this

profession. I would appreciate your help in correcting this

situation fore it has gotten totally out of control.

Customers in the area are also aware of the problem we are

having and have brought this matter to Chucks' [sic] attention on

two separate accosions [sic] (Hon Furn. and Texas Tag). This

problem is spreading beyond the confines of this office and I am

not interested in seeing Arkansas Freightways new reputaion [sic]

in Texas being destroyed by one persons obviously disturbed

actions.

Plaintiff's Exhibit 3. 

Furthermore, Mrs. and Mr. Prunty's testimonies at trial indicate that

Mr. Rippy was never informed of Mr. Baugh's specific acts.

Mrs. Prunty testified:

Questions by Ms. Colson:

Q After he was hired, did you have a discussion with Mr. Rippy about

Mr. Baugh?

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

-14-
Record on Appeal, vol. 2, at 24.

Q Within the first week, what sort of discussion did you have with

Mr. Rippy?

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

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

believe I told him exactly what he said, that, you know, he would

like to see me make it as a woman in operations supervisor and

that we weren't -- you know, we just weren't clicking together. 

We couldn't get along. Everything was just like, whatever I did,

it was wrong. He told me we would just have to work our problems

out between us.

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

out of your job performance or were they more of a personal

nature?

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

doing exactly what I had been doing before. I could realize that

some things, you know, probably need to be changed, you know, to

improve it a little bit, but, you know, no matter how I did it, if

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

to have been done.

Id. at 25-26.

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

you ever contact -- first conversation, did you ever contact him

again?

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

drivers got together and we decided if we called him and all of us

called him that he would do something. So after we all got

through working that night we decided we would call him. We

called him from work and all of us were there, me and Jerry and

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

that's how important it was.

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

were having problems and we couldn't get things worked out and

that he was acting in an unprofessional manner. And he just told

us, you know, that we would have to just, you know, work with it,

what we -- to work things out. And I told him, I said: Well,

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

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

it would be fine with him.

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

unprofessional?

A Yes, ma'am.

Q What else did you tell him about his behavior?

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

know, do things, it was just -- I didn't see it was a correct way

to do. It was just -- lack of words to put it how he was acting.

Id. at 37-38.

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

evening?

A Yes, ma'am.

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

problems?

A Not that I'm aware of.

Id. at 41.

Q Did your husband ever contact Mr. Rippy?

-15-
A Yes, Ma'am. He called him at home. When he was in

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

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

Rippy at home. I asked him not to, but he did.

Id. at 41.

Questions by Mr. Gilker:

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

Rippy about that as part of the problems you had with Arkansas

Freightways?

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

photograph.

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

4/28/89, did you tell him about this dream incident that Mr. Baugh

allegedly made?

A That what?

Q The dream statement that Mr. Baugh allegedly stated.

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

Q The day he came up and investigated the problems.

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

him some of the things that day what was said, yes. I couldn't

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

it to him.

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

these problems that you have testified a minute ago?

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

was acting in an unprofessional manner, and that's what I said to

Mr. Rippy.

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

it"?

A No, sir.

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

consider offensive" to Mr. Rippy?

A No, sir.

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

unprofessional. What context did that statement come up? Was

that the telephone call with you and the other three employees

were on?

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

make him aware that we were having problems there, and he just --

if he had just came and talked to us that day.

Id. at 61-62.

Q And in this phone call, you didn't tell him that -- you did

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

remarks that he was making to any of the employees?

A No, sir.

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

you complained about how the terminal is being run?

A Yes, sir.

Id. at 63.

Questions by the Court:

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

about a problem in the office that he was acting in an

unprofessional manner.

A Yes, sir.

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Q Is that your testimony?

A Yes, sir.

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

unprofessional manner?

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

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

A No, sir.

Q He just said you all needed to get along?

A Yes, sir.

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

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

unprofessional manner, either in writing or orally?

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

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

letter and sent it to the Dallas terminal.

Q Were all of those conversations the same with regard to

whether or not you discussed how he was acting in an

unprofessional manner?

A Yes, sir. I would just say, you know, that things weren't

working out or, you know, that he's, you know, not acting

responsibly or unprofessional, and he would say the same thing,

you know, we just have to work it out, you know. That was between

me and him and he wanted us to get along and for the Paris

terminal to run, you know, smooth and everything.

Q He never inquired --

A No, sir.

Q -- as to what the problem was?

A No, sir.

Q On the other hand, you never specifically referred to any

offensive remarks that may have been made of a sexual nature?

A No, sir.

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

Questions by Ms. Colson:

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

Q When was this?

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

called him.

Id. at 86.

Q And I believe you said you were in California?

A Uh-huh.

Q And who did you call?

A Mr. O.D. Rippy.

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

Mr. Rippy?

A Yes, I did.

Q And did he know who you were?

A Uh-huh.

Q And what was the nature of your discussion?

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

had done, you know, what he had done, the talk and all the --

Q Did you give specific details?

A No, I didn't go into that.

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

that were being made?

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

gestures he had made.

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

specifically?

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

see about doing something about it.

Q And you did mention about gestures and remarks that were

being made?

A Yes, I did.

Q What Was Mr. Rippy's reaction?

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

Mr. Baugh would have to work that out.

Id. at 87-88 (emphasis added).

Questions by Mr. Gilker:

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

date?

A No, I can't.

Q Was it before Christmas or after Christmas?

A I don't remember.

Q What specifics did you tell Mr. Rippy in this telephone

conversation?

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

she hadn't been, you know, since Mr. Baugh had come. They just weren't

getting along and all the remarks and stuff.

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

A I didn't tell -- I didn't go into it. I just said remarks and the

gestures.

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

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

had told me and that she had told me.

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

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

the remarks.

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

the work `remarks'?

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

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

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

Q You didn't say, `He's saying gross things about my wife,' or

anything like that?

A I just said the things that he was saying. You know, I didn't say

bad things or whatever.

Q Just that they're having problems and she's under a lot of stress?

A Yeah.

Id. at 91-93.

Questions by the Court:

Q You say you called Mr. Rippy and said your wife was under a lot of

stress?

A Yes, sir.

Q That she had problems with Mr. Baugh?

A Uh-huh.

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

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

problems. I just asked him could he see about it, and he told me that

was -- they would have to work that out.

Q Well, you testified earlier you said something about remarks. Did

you say anything to him about remarks or not?

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

about her is what I was saying.

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

A I didn't go into any detail about the remarks, about what he said. 

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

problems.

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

A Not exactly.

Q Well, can you tell me what -- is all you said is that they were

having problems?

A Problems about what he had been saying to the dock hands about

Mildred.

Q That's what you told him?

A Yes, sir.

Id. at 93-94 (emphasis added).

In holding that Arkansas ratified Mr. Baugh's conduct, the majority

bases its conclusion on the district court's finding that "Mr. Rippy . . .

knew generally about Mr. Baugh's harassment of Prunty and took no action to

end the harassment." Maj. op. at 11 (emphasis added). The district court'

finding that Mr. Rippy knew generally about Mr. Baugh's conduct is not a

sufficient basis for concluding that Arkansas ratified Mr. Baugh's conduct.

See id. at 10 ("RATIFICATION" means the adoption, confirmation or failure to

repudiate unlawful acts . . . . (emphasis added)). In Twyman v. Twyman, 36

Tex. Sup. Ct. J. 827 (May 8, 1993), the Texas Supreme Court stated that the

elements of intentional infliction of emotional distress are: "1) the

defendant acted intentionally or recklessly, 2) the conduct was extreme and

outrageous, 3) the actions of the defendant caused the plaintiff emotional

distress, and 4) the emotional distress suffered by the plaintiff was severe." 

Id. at 827-28 (adopting the Restatement (Second) of Torts § 46 (1965)). The

record clearly shows that Mr. Rippy did not know about the extreme and

outrageous nature of Mr. Baugh's conduct. For example, Mr. Rippy was never

told about Mr. Baugh's dream, picture, tie, belt buckle, and specific remarks,

nor was he told about the incident when Mr. Baugh unzipped his trousers to

adjust his shirt. See Record on Appeal, vol. 2, at 73-75 (Mrs. Prunty's

testimony), 93-94 (Mr. Prunty's testimony). The cases cited by the majority

opinion))Judge, Reed, and McDonald))are distinguishable because all three

involved situations where the employer knew about the specific unlawful

conduct.

 

18 Prunty only argued that Freightways had a duty to investigate her

complaints that she and Baugh were having problems, and does not contend that

Arkansas knew facts necessary for it to repudiate Mr. Baugh's unlawful acts. 

Ms. Colson stated in final argument:

I think in this case the testimony has shown that she

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

problems. These weren't just adjustment problems. She wrote him

a letter, she called him, her husband called him. She finally

wrote a letter to the president of the company.

Ms. Prunty is a person who was reluctant to go into graphic

details, and probably most women would be -- or persons would be

reluctant to go into graphic detail. I think they had enough

information and they were put on enough notice to be aware of what

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

not investigate it and did not believe her complaint. They

refused to go and do that, and I think they were under a duty to

-19-

ratification to the trial court.18 See United States v. Garcia-
do that and they should have done so, but they did not do so.

Id. at 193; see also Record on Appeal, vol. 1, at 52 (Plaintiff's Brief as to

Damages Pursuant to State Cause of Action) (arguing that Arkansas should be

held liable for damages for intentional infliction of emotional distress

because Mr. Baugh was employed in a managerial capacity and was acting within

the course and scope of employment, and because the act furthered the object

for which Mr. Baugh was hired); Id. at 66-69, 71-72 (Plaintiff's Post Trial

Brief) (same). 

Furthermore, there is no indication in the record that Mrs. Prunty

simply mislabeled her theory of recovery. Most telling is the fact that none

of the cases cited by or the arguments set forth by the majority in Part II.B.

are contained in any briefs filed by the parties on appeal or contained in the

record or referred to in the trial below. 

 

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

on appeal, Mrs. Prunty stated: "Arkansas Freightways is also liable for Chuck

Baugh's actions in his intentional infliction of emotional distress of Mildred

Prunty in that his actions were in furtherance of his employer's business for

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

terminal."), 18-19. The majority indicates that "the ratification question is

properly before this Court" because (1) AFI acknowledged that Prunty had

proffered the issue before the district court, (2) Prunty raised the issue

during oral arguments, and (3) Prunty explained in her brief that Rippy knew

of the sexual harassment but did nothing to stop it. See maj. op. at 8 n.11. 

None of these reasons forms a basis for appellate review. First, this Court

brought up the issue of ratification))not Mrs. Prunty. Second, although

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

of ratification before the district court, he also stated during oral argument

that "[t]hat issue [))ratification))] was never raised by [Mrs. Prunty] in her

pleadings." Third, the record clearly indicates that ratification was not an

issue before the district court. See supra n.4. Fourth, an isolated

statement in Mrs. Prunty's brief stating that Rippy knew of the sexual

harassment is insufficient to preserve this point on appeal. See Fed. R. App.

P. 28(a).

-20-

Pillado, 898 F.2d 36, 39 (5th Cir. 1990) ("We have stated that

issues raised for the first time on appeal `are not reviewable by

this court unless they involve purely legal questions and failure

to consider them would result in manifest injustice.'" (citations

omitted)). Nor did she preserve this issue on appeal.19 See

Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1990) (Stating

that appellant abandoned issue on appeal, because "Fed. R. App.

Proc. 28(a)[(5)] requires that the appellant's [brief] contain

the reasons he deserves the requested relief `with citations to

the authorities, statutes and parts of the record relied on.'"),
-21-

cert. denied, 498 U.S. 966, 111 S. Ct. 427, 112 L. Ed. 2d 411

(1990). Nonetheless, the majority reverses on the basis of

ratification. 

I respectfully dissent from Part II.B. of the majority

opinion.