Court of Appeals of Texas,
El Paso.
Marilea D. McCOWAN, Appellant,
v.
SOFTWARE SPECTRUM, INC., Appellee.
No. 08–00–00077–CV.
|
April 4, 2002.
OPINION
ANN CRAWFORD McCLURE, Justice.
*1 This is an appeal from a summary judgment rendered in favor of Software Spectrum, Inc. (Software) in a suit filed by Marilea McCowan for sexual harassment, constructive discharge, negligence, assault and battery, and retaliation. We affirm in part and reverse and remand in part.
FACTUAL SUMMARY
We begin by introducing the witnesses. Pat Grecco was a female supervisor in Software’s Quality Mailing Services Department (QMS), a department within the Administration Services Department. Rhonda Childre, a supervisor within the Administration Services Department, was Grecco’s manager. Malea Griswald, Childre’s “lead” in the Administration Services Department, held a supervisory position under Childre in the chain of management.
In December 1996, Grecco, a friend of McCowan’s aunt, helped McCowan obtain part-time work in QMS. Grecco interviewed and hired McCowan, and served as her supervisor. McCowan became a full-time employee on January 24, 1997. McCowan received and read Software’s employee handbook on January 27. The handbook contains the company’s sexual harassment policy which prohibits sexual harassment in the workplace and provides a procedure for employees to follow if they believe they have been sexually harassed. Employees are instructed to complain to their supervisor or to make a complaint with Human Resources.
It was common knowledge at Software that Grecco was a lesbian and that McCowan was not. Grecco made sexual advances toward and had bodily contact with McCowan on an almost daily basis. Grecco would approach McCowan from behind and press against her, putting her arms around her waist. When McCowan told her the contact was unwelcome, Grecco became verbally abusive, threatening McCowan with the loss of her job. Grecco questioned McCowan about the size of her boyfriend’s penis and about their sexual relations. She made obscene gestures for the benefit of McCowan in front of coworkers, including thrusting her hips to communicate a sexual act. During a Software dinner party, Grecco commented in front of Childre that McCowan was not at the party because she was on a date getting “fucked” or “laid.” Childre did nothing to reprimand Grecco, nor did she document the incident. After Grecco stalked McCowan while she was on a date, McCowan confronted her the next day at work in front of QMS employees, asking Grecco if she were following her. Grecco made inappropriate remarks about the fit of McCowan’s clothing, including the statement that she thought it was “cute” that McCowan’s jeans cut up her “crotch.” McCowan reported the jeans comment to Childre. Grecco showed McGowan sexually explicit jokes, graphic sketches, and pictures at work which McCowan also reported to Childre. When McCowan requested a transfer out of QMS, Grecco threatened to have her fired if she pursued the transfer. Kay Blanton, a Software employee, testified Grecco would touch her arms and hold onto Blanton’s belt loops whenever Grecco would communicate with her. Blanton believed this was inappropriate and observed Grecco do this to other employees as well.
*2 The QMS working environment was tense. Grecco intimidated her supervisees by her abusive behavior which included yelling, cursing, name calling, and threatening employees with the loss of their jobs. Grecco threatened she would fire anyone who went over her head to complain and continuously warned McCowan that her job was in Grecco’s hands. When employees did complain about Grecco, she was allowed to learn who had done so in violation of company policy. It was also common knowledge that Grecco was verbally abusive toward McCowan at work.
In addition to telling Grecco that her actions were unwelcome, McCowan also informed Griswald and Childre about Grecco’s harassment. McCowan believed Griswald had management authority when she reported that Grecco’s touching made her uncomfortable, that she was concerned Grecco liked her in a way women like each other in a lesbian relationship, and that Grecco asked her inappropriate questions about her dating habits and her boyfriends.
On March 25, 1997, Grecco arrived intoxicated at McCowan’s aunt’s home and pounded on the door, screaming that if McCowan did not let her in, McCowan would be fired from her job. Upon entering the home, Grecco told McCowan she would not have a job in two days, threatened her about complaining to Human Resources, and poked her in the chest. The altercation arose out of McCowan’s decision not to use a moving van located and reserved by Grecco to aid McCowan in moving from her aunt’s home and relocating to her own apartment.
The next morning, McCowan complained in writing to Childre and Vincent Rosales, the director of the Administration Services Department, about the events which had occurred the night before. McCowan also complained to Human Resources personnel that she felt sexually harassed by Grecco’s touching, by her comments about McCowan at the company dinner, by her downgrading McCowan at work, by her threatening McCowan with job termination, by her asking McCowan about her personal and sexual relationships, and by the events of March 25. Rosales and Childre interviewed QMS employees and reported their findings to an employee relations representative. Software terminated Grecco on March 27 for sexual harassment in violation of company policy. Software gave McCowan two weeks’ time off with pay and, without McCowan requesting that it do so, provided McCowan with twenty-four hour security guards for several days due to concern about Grecco’s reaction to the complaint. Software acknowledged that Grecco was terminated for sexual harassment.
Between March 26 and her last day of work in mid-May, McCowan was subjected to ridicule, jokes, and laughter about the harassment. She was blamed for Grecco’s termination as well as for the harassment itself. Software never provided counseling or training to educate employees on an appropriate response to an individual who has been sexually harassed. In its unwillingness or inability to engage in any type of post-sexual harassment counseling, Childre advised the distraught McCowan that Grecco’s termination was a “shock” and “there might be a little bit of tension for a while.”
*3 Jerry Haymaker, Grecco’s replacement, communicated with Grecco after her termination and informed McCowan and other employees that Grecco had called and asked how everyone was doing. Haymaker admitted he was not even aware of Software’s sexual harassment policy and he was not inclined to discuss offensive behavior. After filing the sexual harassment complaint, McCowan requested a transfer from QMS because of the way she was being ridiculed and rebuffed by QMS employees. Software never transferred her to another position. Rosales and Childre told her she would not be moved as she was needed in QMS. Software claimed a receptionist position McCowan wanted did not become available until after she quit, and that a telephone operator position McCowan was interested in was a lateral move.
Although Software maintains that prior to March 26, McCowan had never complained to Rosales or Human Resources personnel regarding Grecco’s behavior, Grecco’s personnel file contained other complaints regarding her behavior and offensive communications toward employees, including the use of unprofessional language and conduct. Despite the fact that Software was aware of eleven previous complaints relating to Grecco, it still allowed her full authority over QMS employees. Grecco had been counseled several times relating to her unprofessional conduct. Although Software alleges that Grecco received training regarding sexual harassment, Grecco could not remember attending any harassment training, nor could she recall the subject matter of any other training classes. Childre stated that despite the fact that she was Grecco’s manager, she was intimidated by Grecco and therefore did not communicate with her. In fact, Grecco did not even realize Childre was her manager. Grecco was considered a benefit to Software as she never missed a deadline and always came in under budget.
On May 13, McCowan telephoned Haymaker to report she was sick, and then later called Childre to say she was quitting. McCowan filed a complaint with the Equal Employment Opportunity Commission on June 25 and received the requisite right to sue letter. She ultimately sued Software, Grecco, and Haymaker for sexual harassment, constructive discharge, negligent retention, negligent training and negligent supervision, assault and battery, and retaliation. Grecco and Haymaker were subsequently non-suited. Software filed a first motion for summary judgment which the trial court denied finding that material fact issues existed. Software subsequently filed its amended motion for summary judgment which the court granted without a hearing. This appeal follows.
STANDARD OF REVIEW
Software filed both a traditional and no-evidence motion for summary judgment. In a traditional summary judgment analysis, we must determine whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex.1985); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Duran, 921 S.W.2d at 784. In resolving these issues, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant’s favor. Nixon, 690 S.W.2d at 548–49; Duran, 921 S.W.2d at 784. In the context of this case, a traditional summary judgment would be proper if Software conclusively established each element of its affirmative defense, thereby rebutting McCowan’s sexual harassment cause of action.
*4 A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moore v. K Mart Corporation, 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). See also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous.L.Rev. 1303, 1356 (1998). A no-evidence summary judgment is improperly granted if the non-movant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non-movant’s claim on which the non-movant would have had the burden of proof at trial. Moore, 981 S.W.2d at 269; see Tex.R.Civ.P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Havner, 953 S.W.2d at 711; Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex.App.-Austin 1998, no pet.). Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); Jackson, 979 S.W.2d at 71. We review the evidence in the light most favorable to the non-movant against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. See Havner, 953 S.W.2d at 711. If McCowan has brought forward more than a scintilla of evidence on each element of every cause of action alleged, a no-evidence summary judgment is improper.
THE POLICY
Software’s entire written policy on sexual harassment provided:
It is prohibited for any employee to engage in conduct that intimidates or interferes with an employee’s work or work environment through unwelcome, offensive or harassing sexual comments, questions or acts (implicitly or explicitly), including prejudicial statements or acts regarding pregnancy or marital status.
Any employee who is subjected to sexual harassment should report the incident immediately to his or her supervisor or the Human Resources Department. All charges of sexual harassment will be treated with strict confidentiality and with respect for the privacy of all parties concerned. Any employee who violates this policy is subject to disciplinary actions up to and including termination. [Emphasis added.]
SEXUAL HARASSMENT
In Points of Error Nos. One through Five, McCowan contends that summary judgment was improper on her sexual harassment claims. The Texas Commission on Human Rights Act is modeled after federal law with the purpose of executing the policies set forth in Title VII of the Civil Rights Act of 1964. Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 658 (Tex.App.-Corpus Christi 1994, writ denied). The Act makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin. See Tex.Lab.Code Ann. § 21.051 (Vernon 1996). Sexual harassment is a form of sex discrimination prohibited by the Act. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Syndex Corp. v. Dean, 820 S.W.2d 869, 871 (Tex.App.-Austin 1991, writ denied). The law recognizes two types of sexual harassment claims: quid pro quo and hostile work environment. Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex.App.-El Paso 1997, writ denied). The United States Supreme Court has determined that a claim for sexual harassment will not be defeated simply because the harasser and the victim are of the same sex. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). We have recently concluded that same-sex sexual harassment is likewise actionable under the Texas Act. Dillard Department Stores, Inc. v. Gonzales, No. 08–00–00111–CV, slip op. at 12 (Tex.App.-El Paso March 7, 2002, no pet. h.).
*5 The Supreme Court has refined the concept of employer liability for a supervisor’s harassment of an employee. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). In Ellerth, the court analyzed the history of vicarious liability and the variety of ways in which courts have applied agency principles in deciding whether an employer was liable for a supervisor’s actions in a sexual harassment claim. 524 U.S. at 754, 118 S.Ct. at 2265, 141 L.Ed.2d 633. It concluded that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee. Id. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Id. at 765, 524 U.S. 742, 118 S.Ct. at 2257, 141 L.Ed.2d 633.
Quid Pro Quo
The elements of a quid pro quo sexual harassment claim are: (1) a supervisor (2) because of sex (3) subjects an employee to (4) unwelcome conduct that (5) affects a tangible aspect of the employment relationship. Dillard, slip op. at 13; Wal–Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 470 (Tex.App.-Austin 2000, pet. denied); Soto, 942 S.W.2d at 677–78; Ewald, 878 S.W.2d at 658–59. An employer’s liability in cases of quid pro quo sexual harassment derives from the law of agency; because discriminatory conduct ordinarily lies outside the agent’s scope of authority, for a principal to be held liable it must be shown that the agency relationship aided the supervisor in committing the discriminatory act. Itz, 21 S.W.3d at 470. Quid pro quo sexual harassment by a supervisory employee requires proof with respect to a tangible aspect of the employment relationship, so that the injury could not have been inflicted absent the agency relationship, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Id.
Neither party disputes that Grecco was McCowan’s supervisor who, because of sex, subjected McCowan to unwelcome conduct. What is disputed is whether that conduct affected a tangible aspect of employment. Tangible effects are defined as detracting from the employee’s work performance, discouraging the employee from remaining on the job, or keeping the employee from advancing her career. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22–23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Moreover, McCowan has alleged constructive discharge, which may be considered a tangible aspect of the employment relationship. Dillard, slip op. at 13.
*6 McCowan claimed that after Grecco was terminated, other employees began to ridicule her. Instead of offering employee counseling or additional anti-harassment training, Software’s response was to simply tell McCowan that things might be tense for a while. She was thwarted in her efforts to transfer out of the department. While Software maintained it had a policy which restricted transfers until an employee had been employed for six months, McCowan offered evidence that other Software employees were transferred earlier than that and that the company policy did not prohibit it. She also offered testimony that Grecco’s replacement, Jerry Haymaker, communicated with Grecco after her termination and informed employees that Grecco had called and asked how everyone was doing. Another employee maintained contact with Grecco; in turn, Grecco called McCowan’s aunt to relay her familiarity with ongoing events at Software. This “sent red flags up” to McCowan and she felt “like [she] was constantly being watched.” “The fact that the contact was being made at work and at home was very unsettling to [her].” Viewing the evidence in the light most favorable to McCowan, one could infer from repeated references to Grecco’s departure that supervisory personnel were fostering controversy rather than facilitating an end to what Childre described as tension following the shock of Grecco’s termination. This is some evidence of an employer discouraging the employee from remaining on the job or keeping the employee from advancing her career. Because McCowan offered some evidence on each element of her quid pro quo claim, a no-evidence summary judgment cannot be sustained on this basis.
Hostile Work Environment
The elements of McCowan’s hostile work environment claim include: (1) a supervisor (2) because of sex (3) subjects an employee to (4) unwelcome conduct (5) that is severe and pervasive, (6) creates an abusive work environment, and (7) affects a term, condition, or privilege of employment. Dillard, slip op. at 13; Itz, 21 S.W.3d at 472; Soto, 942 S.W.2d at 678; Ewald, 878 S.W.2d at 659. In determining whether a hostile environment claim has been established, the court should consider the type of conduct (verbal or physical), its frequency, its offensiveness, the hostility of the conduct, whether it comes from a supervisor or coworker, and the number of persons at whom it is directed. Dillard, slip op. at 13–14; Soto, 942 S.W.2d at 678. The critical inquiry is environment; evidence of general work atmosphere as well as specific instances of hostility or abuse are important. Id. Single incidents should not be viewed in isolation; it is the cumulative effect of offensive behavior which creates the work environment. Id. A supervisor’s conduct may be imputed to the employer either because the supervisor was directly responsible for the hostile work environment or because the supervisor failed to stop the abuse by others after learning of it. Itz, 21 S.W.3d at 472. An employer may avoid liability for a hostile work environment claim by pleading and proving the affirmative defense set forth in Ellerth and Faragher. Id. However, the affirmative defense is unavailable when the harassment results in a tangible employment action such as discharge, demotion, or undesirable reassignment. Id. at 473; Faragher, 524 U.S. at 808, 118 S.Ct. 2275, 141 L.Ed.2d 662.
*7 Harassment directed at other members of the same protected group is relevant to show a hostile environment. King v. Hillen, 21 F.3d 1572, 1583 (Fed.Cir.1994); Waltman v. International Paper Co., 875 F.2d 468, 477 (5th Cir.1989). Discriminatory intimidation, ridicule and insult, when sufficiently severe and pervasive, may be adequate to show a workplace environment adversely affecting a term, condition or privilege of employment; it is not necessary to demonstrate an adverse economic effect. Id.; Meritor, 477 U.S. at 64, 106 S.Ct. 2399, 91 L.Ed.2d 49. A plaintiff need not show a tangible psychological injury; something less may be sufficient when combined with all other circumstances. Itz, 21 S.W.3d at 473; Harris, 510 U.S. at 22–23, 114 S.Ct. 367, 126 L.Ed.2d 295. Offensive behavior not involving sexual activity but nevertheless based on the gender of an employee, when sufficiently severe or pervasive, may create a hostile work environment. Soto, 942 S.W.2d at 679; Hillen, 21 F.3d at 1583. Thus, even if the conduct at issue here had no sexual overtones, that alone would not preclude a finding of a hostile environment. Soto, 942 S.W.2d at 679. Harassment based on gender need not take the form of a sexual advance or contain otherwise carnal overtones to constitute prohibited sex discrimination. Id; Stacks v. Southwestern Bell Yellow Pages, Inc. ., 27 F.3d 1316, 1326 (8th Cir.1994)(predicate acts supporting a hostile environment claim need not be explicitly sexual); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987)(rejecting narrow definition of sexual harassment as always sexual in nature).
The evidence is undisputed that McCowan personally perceived her work environment to be hostile because of Grecco’s conduct. Grecco’s verbal abuse and threatening manner were a matter of common knowledge at Software. Grecco verbally and physically intimidated McCowan on numerous occasions before any action was taken to stop her. As her direct manager, Grecco had authority to direct McCowan’s work and her job required that she respond to Grecco’s requests. That Grecco was never disciplined until March 26 is a relevant factor in determining the hostile environment claim. While acting as McCowan’s supervisor, Grecco engaged in ongoing acts of a sexual nature. This conduct occurred both during and after work hours and in connection with Grecco’s performance as a supervisor.
With regard to whether McCowan brought forward some evidence that the discriminatory conduct affected a term or condition of her employment, she offered testimony that her requests for a transfer were refused and that she was constructively discharged. We have recently held that constructive discharge applies to both quid pro quo and hostile work environment claims of sexual harassment. Dillard, slip op. at 13. Constructive discharge requires a finding that a reasonable person in the employee’s position would have felt compelled to resign as a result of the employer’s discriminatory conduct. Dillard, slip op. at 17; Green v. Industrial Speciality Contractors, Inc., 1 S.W.3d 126, 134 (Tex.App.-Houston [1st Dist.] 1999, no pet.). It must be based upon harassment of a greater severity or pervasiveness than the minimum required to prove a hostile work environment. Id. Nevertheless, it is the conditions imposed which control, not the employer’s state of mind. Borg Warner Protective Services Corp. v. Flores, 955 S.W.2d 861, 866 (Tex.App.-Corpus Christi 1997, no pet.). Thus, a plaintiff need not prove that the employer subjectively intended to force the resignation. Id. McCowan, as the non-movant, produced more than a scintilla of evidence raising a genuine issue of material fact on the issue of a hostile work environment claim. A no-evidence summary judgment cannot be sustained on this basis.
Affirmative Defense
*8 The Ellerth affirmative defense is the crux of Software’s traditional motion for summary judgment. In Ellerth, the Court analyzed the history of vicarious liability in sexual harassment actions and the variety of ways in which courts have applied agency principles in deciding whether an employer is liable for a supervisor’s actions. 524 U.S. at 754, 118 S.Ct. at 2265, 141 L.Ed.2d 633; Wal Mart Stores, Inc. v. Davis, 979 S.W.2d 30 (Tex.App.-Austin 1998, writ denied). The court concluded that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. As we have already discussed, McCowan offered some evidence of tangible employment action which would preclude a traditional summary judgment on the affirmative defense. And as we will now detail, Software failed to conclusively establish the elements of the defense such that a traditional summary judgment cannot withstand scrutiny.
Software’s Duty to Exercise Reasonable Care to Prevent and Promptly Correct Grecco’s Behavior.
Software argues that it took prompt, adequate remedial action once it was informed of Grecco’s sexually harassment. It contends that because it had a written policy on sexual harassment in place, and because it investigated McCowan’s complaint to Human Resources, it fully complied with any obligations it had under the law. McCowan contends that the earlier complaints she made to Childre and Griswald provided notice of the harassment long before she filed her complaint with Human Resources. Knowledge can be established by demonstrating that a specific complaint was lodged with higher management or by showing that the pervasiveness of the harassment was such as to give rise to an inference of knowledge or constructive knowledge by the employer. Waltman, 875 F.2d at 478. Software maintains that it was first placed on notice when McCowan complained to Human Resources on March 26. The record reflects that McCowan had previously complained to Grecco, Childre, and Griswald regarding Grecco’s objectionable and sexually charged comments and actions. Additionally, Software had received other complaints about Grecco’s abusive behavior yet continued to give Grecco full authority over QMS employees, including McCowan.
Even if the employer takes some remedial steps, it will still be liable if its actions are not reasonably calculated to stop the harassment. Waltman v. Int’l Paper Co., 875 F.2d 468, 479 (5th Cir.1989). The United States Supreme court has identified a two-fold purpose behind Title VII’s enactment: (1) eliminating employment discrimination, and (2) allowing the aggrieved party to be made whole for those injuries suffered on account of unlawful employment discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417–18, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); see also City of Austin v. Gifford, 824 S.W.2d 735, 739 n. 2 (Tex.App.-Austin 1992, no writ). Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms. Ellerth, 524 U.S. at 745, 118 S.Ct. at 2261, 141 L.Ed.2d 633.
*9 Logically then, the efficacy of an employer’s remedial measures should be evaluated in light of Title VII’s purposes. Davis, 979 S.W.2d at 37. There, the court considered Wal Mart’s actions to determine whether it met its burden of proof to establish an affirmative defense. Evidence regarding remedial measures included the fact that members of higher management either ignored the complained-of conduct or did not understand its implications. Davis, 979 S.W.2d at 40. To show it had procedures in place for employees to report sexual harassment, Wal Mart introduced into evidence a poster concerning sexual harassment which was displayed in the employee lounge. Id. at 36. Wal Mart did not mandate nor offer any training in sexual policy after the incident for employees remaining at the store. Id. at 39. The employees believed the plaintiff had brought the harassment on herself. Id. at 36, 39. Testimony indicated the harasser was a profitable, but not trouble free, manager. Id. at 39. His temper was a consistent problem which had been noted in his personnel file. Id. The court concluded that comments such as the employee needed to “get past it” sent a message that there were negative consequences to complaining, thereby defeating the goal of effective grievance mechanisms. Id. This attitude suggests a lack of belief the supervisor had harassed the plaintiff or that his actions toward her were improper at all. Id. Further, Wal–Mart could not escape responsibility by refusing to train managers and supervisors in the fundamentals of how to deal properly with sexual harassment. Id; compare to Carmon v. Lubrizol Corp., 17 F.3d 791, 794 (5th Cir.1994)(district court found there were prompt remedial actions where a coworker’s verbal harassment resulted in the company distributing memos warning against vulgar and abusive language, practical jokes or horseplay, and in holding meetings concerning appropriate workplace behavior).
We conclude that a fact issue exists as to whether Childre’s and Griswald’s knowledge of Grecco’s harassment should be imputed to Software. A fact question also exists as to when Software had notice of a hostile environment in the workplace, and whether it took sufficient remedial action to promptly and adequately correct the situation.
McCowan’s Duty to Take Advantage of Preventative or Corrective Opportunities
Software also had the burden of demonstrating that McCowan unreasonably failed to take advantage of the preventative or corrective opportunities Software offered its employees. Software’s written policy required McCowan to report Grecco’s actions to her supervisor or to Human Resources. McCowan’s immediate supervisor was Grecco. In Williamson v. City of Houston, 148 F.3d 462 (5th Cir .1998), the court applied Ellerth and Faragher where the employer’s sexual harassment policy required that the employee complain to her supervisor who happened to be the actual harasser. The court stated that an employer should not prevail under this affirmative defense where the supervisor was granted virtually unchecked authority over subordinates, and the employees were completely isolated from higher management. Id. at 466. Further, while information regarding an employer’s organizational structure may be relevant to determining whether notice to an employee at a given level constitutes notice to the employer, the court concluded that the issue does not turn on labels attached to levels of hierarchy. Id. at 466; Young v. Bayer Corp., 123 F.3d 672, 673–75 (7th Cir.1997). A more important consideration is whether notice is given “to those with authority to address the problem.” Williamson, 148 F.3d 466; Nash v. Electrospace Sys., Inc. 9 F.3d 401, 404 (5th Cir.1993). Deposition testimony established that Grecco threatened QMS employees with severe retaliation if they went over her head to complain. She threatened McCowan often in this regard. McCowan complained to Grecco, Griswald, and Childre. Griswald was a “lead,” a position described in the record as supervisory in nature. Childre was Grecco’s manager and had authority to address the harassment problem. She could have directed Grecco to cease her harassing behaviors, and Grecco would have been subject to discipline for failing to obey. However, Childre admitted that she too was intimidated by Grecco.
Conclusion
*10 In Gallagher v. Delaney, 139 F.3d 338, 342 (2nd Cir.1998), the court noted the recognition of an employee’s dignity might require standards higher than those of the street, and that reasonable people can take justifiable offense at comments that the vulgar among us, even if they constitute a majority, would consider acceptable. “Today, while gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogenous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation.” Id. We believe the jury is the appropriate body to determine whether Grecco’s conduct was sufficiently objectionable to be actionable. We conclude that the trial court erred in granting summary judgment with regard to McCowan’s sexual harassment claims. Accordingly, we sustain McCowan’s first five points of error.
CONSTRUCTIVE DISCHARGE
In Point of Error No. Six, McCowan complains that the trial court erred in granting summary judgment because there are many disputed factual issues concerning whether constructive termination occurred. Constructive discharge arises when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. Green, 1 S.W.3d at 134; Davila v. Lockwood, 933 S.W.2d 628, 630 (Tex.App.-Corpus Christi 1996, no writ); Hammond v. Katy Ind. Sch. Dist., 821 S.W.2d 174, 177 (Tex.App.-Houston [14th Dist.] 1991, no writ). To find constructive discharge, it must be determined whether or not a reasonable person in the employee’s position would have felt compelled to resign as a result of the employer’s discriminatory conduct. Id.
McCowan alleged that she was forced to resign after filing her sexual harassment complaint to avoid further malicious acts against her by Software personnel. In its motion for summary judgment, Software asserted that McCowan had no evidence establishing that her working conditions were so intolerable that she was forced to resign. We disagree. McCowan’s allegations of ridicule are sufficient to raise a fact issue. See Hammond, 821 S.W.2d at 178. McCowan was the object of laughter and joking; other employees commented that “ ‘it must be nice to have all that time off from work. Maybe I need to’—basically get sexually harassed to get time off.” She was accused of inviting Grecco’s sexual advances. McCowan heard two female employees of the credit department say that “[t]his wouldn’t have happened to her if she wasn’t gay, too.” She “felt that [a] stigma was placed” on her. Haymaker replaced Grecco as the supervisor in QMS and he continued to take telephone calls from her which he shared with his supervisees, including McCowan. Software’s only response to the situation was that things might be tense for a while. Moreover, McCowan looked for a way out of the department without leaving the company’s employ but her requests for a transfer were denied.
*11 McCowan has made the required showing that a material fact issue exists regarding whether her working conditions were so intolerable that a reasonable person would be forced to resign to avoid further harassment. We sustain Point of Error No. Six.
NEGLIGENT RETENTION, NEGLIGENT TRAINING, AND NEGLIGENT SUPERVISION
In Point of Error No. Seven, McCowan complains that there are many disputed fact issues concerning her claims of negligent retention, training, and supervision. Specifically, she claims Software failed to take reasonable precautions to protect her from Grecco’s misconduct both on and off site, and to properly supervise QMS personnel between March 26 and May 17, 1997. Software maintains McCowan’s negligence claims are barred by the exclusive remedy provision of the Texas Worker’s Compensation Act. Tex.Lab.Code Ann . § 408.001(a)(Vernon 1996). Software subscribed to worker’s compensation during the period of McCowan’s employment. Generally, the employer-employee relationship creates a duty on the part of the employer to control the employee’s conduct. See Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983). An employer has a duty to adequately hire, train, and supervise employees. The negligent performance of those duties may impose liability on an employer if the complainant’s injuries are the result of the employer’s failure to take reasonable precautions to protect the complainant from misconduct of its employees. See Dieter v. Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex.App.-Corpus Christi 1987, writ denied). Under the personal animosity exception, however, there is no liability if the injury arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment. Tex.Lab.Code Ann. § 406.032(1)(C).
We find Walls Regional Hosp. v. Bomar, 9 S.W.3d 805 (Tex.1999) controlling. There, nurses who alleged that they were sexually harassed by a physician with staff privileges brought suit against the hospital for negligent hiring, negligent credentialing, and failure to provide them with a safe workplace. The hospital sought summary judgment in part on the ground that the plaintiffs’ suit was barred by the Texas Worker’s Compensation Act. Noting that the plaintiffs alleged that the doctor’s harassment occurred only at work and never privately outside the hospital, the court concluded that the negligence action was barred. It rejected the plaintiffs’ assertion that their claims fell within the “personal animosity” exception which pertains to injuries arising from the act of a third party intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment.
Plaintiffs do not contend that Boyett ever accosted them privately outside the Hospital, nor do they contend that he came to the Hospital because they were there. On the contrary, plaintiffs contend, and the summary judgment record establishes, that Boyett harassed plaintiffs because they happened to be at work at the same time he was. Indeed, plaintiffs allege that Boyett had harassed other female employees and patients in the past. Plaintiffs’ problems with Boyett were not ‘transported into the place of employment from [their] private or domestic [lives]’; rather, their problems occurred only at the Hospital. ‘[C]onditions attached to the place of employment’ were not only ‘factors in the catastrophic combination’ that led to plaintiffs’ injuries, they were the exclusive setting for the harassment. Two of the three plaintiffs each filed an affidavit in response to the Hospital’s motion for summary judgment that described offensive encounters with Boyett at work and stated: ‘This assault had nothing to do with my work. The sexual assault occurred for reasons that were personal to Dr. George Boyett.’
*12 We agree with Software that (1) almost all of the events submitted by McCowan as evidence of sexual harassment took place in the workplace; (2) that McCowan has never alleged that the events occurring outside of the workplace were related to a personal issue rather than the employment relationship (and has in fact denied such a theory); (3) that Grecco was verbally abusive to other employees; and (4) that McCowan has consistently maintained that the harassment was related to her work rather than a personal relationship. Point of Error No. Seven is overruled.
ASSAULT AND BATTERY
In Point of Error No. Eight, McCowan claims that the trial court erred in granting summary judgment because there are disputed fact issues concerning whether an assault and battery occurred. The elements for a cause of action for assault and battery are the same in civil and criminal suits. Green, 1 S.W.3d at 134; Price v. Short, 931 S.W.2d 677, 687 (Tex.App.-Dallas 1996, no writ), citing Texas Bus Lines v. Anderson, 233 S.W.2d 961, 964 (Tex.Civ.App.-Galveston 1950, writ ref’d n.r.e.). A person commits an assault if he “intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” See Tex.Pen.Code Ann. § 22.01(a)(3)(Vernon 1994). An employer may be liable for the tortious conduct of its employee only if that conduct falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired. Soto, 942 S.W.2d at 680; Durand v. Moore, 879 S.W.2d 196, 199 (Tex.App.-Houston [14th Dist.] 1994, no writ). An employer may be liable for the act of an employee, even if the act is contrary to an express policy or order, if it is done within the general authority of the employee. Soto, 942 S.W.2d at 680. Tortious conduct is within the scope of employment when it is of the same general nature as that authorized, or is incidental to that authorized. Id. Intentional torts, including assault, against another employee are not ordinarily within the scope of an employee’s authority, but are most often the expression of personal animosity. Soto, 942 S.W.2d at 680; Durand, 879 S.W.2d at 199. If the assault is committed to accomplish a duty entrusted to the employee, rather than because of personal animosity, however, the employer may be liable. Soto, 942 S.W.2d at 681; Southwestern Bell Telephone Co. v. Wilson, 768 S.W.2d 755, 759 (Tex.App.-Corpus Christi 1988, writ denied). Whether the employee ceased to act as an employee, and instead acted upon his or her own responsibility, is generally a fact question. Soto, 942 S.W.2d at 681; Durand, 879 S.W.2d at 199.
McCowan argues that Software knew of Grecco’s behavioral problems and her propensity for being abusive but did nothing to prevent its continuation and possible escalation which culminated with the attack on March 25. The evidence, viewed in the light most favorable to McCowan, shows that the incidents occurred both at the work place during business hours and after work. While working in QMS at Software’s facility, McCowan was subject to Grecco’s unwelcome touching on a regular basis. Even though Grecco may have gone to McCowan’s aunt’s home the night March 25 to confront McCowan about a personal matter, Grecco threatened McCowan with the loss of her job when McCowan refused to let Grecco in. She used her position as McCowan’s supervisor to gain entry to the home. After entering, Grecco physically assaulted McCowan and again threatened McCowan with termination if she complained to Software about the incident.
*13 Software contends that it is not liable for these acts because, to the extent they occurred, they were outside the scope of Grecco’s employment. We find this argument somewhat disingenuous. Having argued in connection with Point of Error No. Seven that summary judgment was proper on the negligence claims because there is no evidence that Grecco’s harassment “had anything to do with [McCowan’s] life outside of the workplace, but instead [she] has asserted consistently and repeatedly that Grecco’s actions were inherently tied up in the working relationship, and in fact were committed as part of Grecco’s job,” Software now argues that there is no evidence the assaults were connected to Grecco’s job responsibilities. It maintains the company “had, by its training in sexual harassment prevention, made it clear to Grecco that such conduct was not permissible by an employee.” While a jury may ultimately agree, for purposes of summary judgment review we must accept as true Grecco’s testimony that she could not remember attending any sexual harassment training.
Software also contends that McCowan has not alleged that Grecco threatened her with bodily harm. The record suggests otherwise. Grecco often made it a point to say she had retired from the Army and had received combat training. The statement was made in the context of emphasizing that “nobody could physically do—you know, talk back or do anything to her, because she had that type of training. She wouldn’t be beat up.” These comments made McCowan afraid for her own personal safety and for that of her son. McCowan’s aunt had told her that Grecco had a tendency to be violent and physical when she had been drinking and that on one occasion, Grecco had tried to hit the aunt. McCowan described Grecco as “drunk—very drunk” during the events of March 26. Haymaker expressed his belief that Grecco was drunk during one of his telephone conversations with her and that she had slurred her words and stated her disbelief that McCowan had filed suit.
Question: And did Ms. Grecco’s conduct make you in fear of bodily harm?
Answer by McCowan: Yes.
Q: In what way?
A: Verbally, she threatened about as long as I was walking, talking, breathing, walking the face of the earth that she was gonna get me.
Q: Okay. When did she say that?
A: It was after the 26th.
It was this threat that caused McCowan concern when Grecco stayed in touch with other Software employees after her termination. McCowan did not want anyone other than Childre to know that she planned to quit because she was concerned “it would get back to [Grecco].” She did not want Grecco to know “where I am at, where I live, where I work, none.”
Q: And what concerned you about that?
A: Well, [Grecco] said she was going to get me. And, like I said earlier, as long as—her words were, as long as I was still living and breathing and walking the face of the earth, she has unfinished business with me and she would get me. The fact that coworkers that I work with are still in contact with her, that scared me.
*14 McCowan has brought forth more than a scintilla of evidence to raise a fact issue as to her assault and battery claim. We sustain Point of Error No. Eight.
RETALIATION
In Point of Error No. Ten, McCowan submits the trial court erred in granting summary judgment concerning her claim of retaliation. To prove a claim of retaliation, McCowan must demonstrate that: (1) she engaged in activity protected by Title VII or a similar state statute; (2) Software took adverse employment action against her; and (3) a causal connection between the two exists. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997), citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992). McCowan urges that by denying her requested transfer out of QMS, Software retaliated against her for filing a sexual harassment complaint. She has also alleged constructive discharge. Software maintains it has a policy which restricts transfers until an employee has been employed for six months. It also asserts McCowan cannot prove retaliation because the receptionist position she was interested in did not become available until after she quit, and the telephone operator position was a lateral move. McCowan counters that other Software employees were transferred earlier than six months and that the policy does not prohibit earlier transfers. She also offered testimony that Grecco’s replacement, Jerry Haymaker, communicated with Grecco and informed QMS employees, including McCowan, that Grecco had called and asked how everyone was doing. Indulging all inferences in McCowan’s favor, as we must, we conclude that McCowan offered testimony that these ongoing references to Grecco continued to stir the pot. One could infer that supervisory personnel not only permitted a negative attitude to exist towards McCowan and her claims of harassment but fostered it. And Haymaker’s own testimony revealed that he was not of a mind to counsel employees against ongoing ridicule. He admitted he was not even aware of Software’s sexual harassment policy and he was not inclined to discuss offensive behavior. Because McCowan’s summary judgment evidence raises material fact issues in this regard, we sustain Point of Error No. Ten.
CONCLUSION
We sustain the summary judgment with regard to the negligence complaints addressed in Point of Error No. Seven. Having sustained Points of Error Nos. One, Two, Three, Four, Five, Six, Eight, and Ten, we reverse and remand the sexual harassment, constructive discharge, assault and battery, and retaliation claims to the trial court. Because of our disposition, we need not address Points of Error Nos. Nine and Eleven.