Opinion
Civil Action No. 3:99-CV-2522-D.
August 26, 2004
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Alyssa Wright ("Wright") sues defendants Blythe-Nelson ("Blythe-Nelson"), a Texas general partnership, and James L. Blythe ("Blythe") to recover for intentional infliction of emotional distress and assault and battery. She also sues Blythe-Nelson for sexual harassment (hostile work environment and quid pro quo), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and seeks to hold Blythe individually liable under Title VII on a theory of alter ego. The parties tried this case to the court on July 26 and 27, 2004. At the same time, the parties tried a dischargeability adversary proceeding brought by Wright against Blythe under 11 U.S.C. § 523(a)(6), as to which the court had withdrawn the reference in Blythe's individual bankruptcy. The court concludes that Wright is entitled to recover judgment against Blythe-Nelson and Blythe, and it enters the following findings of fact and conclusions of law in support of its judgment.
Findings of Fact
1. The court adopts as findings of fact the stipulated facts set out in § B of the amended joint pretrial order ("Pretrial Order").
2. Wright proved each of the elements of her claim for intentional infliction of emotional distress against Blythe. She proved that (1) Blythe acted recklessly, (2) his conduct was extreme and outrageous, (3) his actions caused her emotional distress, and (4) the emotional distress was severe.
3. Blythe committed intentional infliction of emotional distress against Wright during the course and scope of his employment with Blythe-Nelson, while employed in a managerial capacity, and while acting in the scope of that managerial capacity. Alternatively, if he acted outside the course and scope of his employment, he did so while he was a partner of Blythe-Nelson.
4. The sum of money, if paid now in cash, that would fairly and reasonably compensate Wright for physical pain and mental anguish from intentional infliction of emotional distress that was sustained in the past is $150,000. Wright did not prove that she suffered damages other than physical pain and mental anguish damages as a result of the intentional infliction of emotional distress.
5. The sum of money, if paid now in cash, that would fairly and reasonably compensate Wright for physical pain and mental anguish from intentional infliction of emotional distress that in reasonable probability will be sustained in the future is $0.00.
6. Blythe acted with malice in intentionally inflicting emotional distress on Wright.
7. The injuries that Blythe caused Wright by intentionally inflicting emotional distress on her were willful and malicious because there was an objective substantial certainty of harm to her from his conduct.
8. The sum of $150,000 should be awarded to Wright from Blythe for exemplary damages for intentional infliction of emotional distress.
9. The sum of $150,000 should be awarded to Wright from Blythe-Nelson for exemplary damages for intentional infliction of emotional distress.
10. Wright proved each of the elements of her claim for assault and battery. She proved that Blythe (1) intentionally caused physical contact with her (2) when he knew or should reasonably have believed that she would regard the contact as offensive.
11. Blythe committed assault and battery against Wright during the course and scope of his employment with Blythe-Nelson, while employed in a managerial capacity, and while acting in the scope of that managerial capacity. Alternatively, if he acted outside the course and scope of his employment, he did so while he was a partner of Blythe-Nelson.
12. The sum of money, if paid now in cash, that would fairly and reasonably compensate Wright for physical pain and mental anguish from assault and battery that was sustained in the past is $50,000. Wright did not prove that she suffered damages other than physical pain and mental anguish damages as a result of the assault and battery.
13. The sum of money, if paid now in cash, that would fairly and reasonably compensate Wright for physical pain and mental anguish from assault and battery that in reasonable probability will be sustained in the future is $0.00.
14. Blythe acted with malice in committing assault and battery against Wright.
15. The injuries that Blythe caused Wright by committing assault and battery against her were willful and malicious because there was an objective substantial certainty of harm to her from his conduct.
16. The sum of $50,000 should be awarded to Wright from Blythe for exemplary damages for assault and battery.
17. The sum of $50,000 should be awarded to Wright from Blythe-Nelson for exemplary damages for assault and battery.
18. Wright met her burden under Title VII of proving that (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual harassment; and (3) the harassment was based on sex.
19. Wright proved that she suffered a tangible employment action when Blythe-Nelson terminated her employment on December 21, 1997, but she failed to prove that she suffered another tangible employment action.
20. Wright failed to prove that her termination resulted from her rejection of Blythe's sexual harassment.
21. Wright proved each element of her Title VII hostile work environment claim: (1) she belongs to a protected group, (2) she was subject to unwelcome sexual harassment, (3) the harassment complained of was based upon sex, (4) the harassment complained of affected a term, condition, or privilege of employment because it was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment, and (5) Blythe-Nelson knew or should have known of the harassment in question and failed to take prompt remedial action.
22. Wright proved that Blythe subjected her to a hostile work environment.
23. Blythe-Nelson failed to prove that it exercised reasonable care to prevent and correct promptly any sexual harassment and failed to prove that Wright unreasonably failed to take advantage of any preventative or corrective opportunities that Blythe-Nelson provided.
24. The sum of money, if paid now in cash, that would fairly and reasonably compensate Wright for her compensatory damages for Blythe-Nelson's violation of Title VII is $50,000.
25. Blythe individually was not Wright's employer.
26. Blythe filed for chapter 7 bankruptcy in February 2002. Wright initiated an adversary proceeding against him, as to which the court has withdrawn the reference, by filing a complaint to determine dischargeability of debt pursuant to 11 U.S.C. § 523(a)(6).
27. Blythe-Nelson, a Texas general partnership, filed for chapter 7 bankruptcy on November 6, 2001. On November 22, 2002 the bankruptcy court entered an order that modified the automatic stay "for the limited purpose of liquidating Wright's claims" in the instant case. The order provides "that, in the event that Wright obtains judgment against [Blythe-Nelson] in the Lawsuit, collection of such judgment shall be limited to any distribution on an allowed claim against the bankruptcy estate."
28. The Blythe-Nelson estate has been fully administered, and there are no funds or assets of the estate that remain for distribution to an unsecured creditor such as Wright. The bankruptcy court signed an August 13, 2003 order closing the Blythe-Nelson bankruptcy estate and discharging the trustee, and the bankruptcy case has been closed.
29. There are no distributions on allowed claims against the Blythe-Nelson bankruptcy estate from which Wright can collect a judgment against Blythe-Nelson.
30. Although the parties stipulated that Wright filed her discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on April 7, 1998, they did not stipulate, and Wright did not prove, the date she notified defendants that she was making claims against them under Texas law.
31. Wright filed this lawsuit on May 5, 1999.
32. Under 28 U.S.C. § 1961, the postjudgment interest rate on August 25, 2004 was 1.98% per annum.
Conclusions of Law
1. Wright has included references to a claim for negligent misrepresentation in her amended proposed findings of fact and conclusions of law and in her proposed final judgment. She is not entitled to recover for negligent misrepresentation because she did not list negligent misrepresentation as a claim in the Pretrial Order, and, even assuming arguendo that her second amended complaint controls over the Pretrial Order, it is not alleged as a cause of action in that pleading.
2. Blythe is not entitled to discharge in bankruptcy Wright's claims for intentional infliction of emotional distress and assault and battery because the injuries he caused her were willful and malicious. See 11 U.S.C. § 523(a)(6). "The test for willful and malicious injury under Section 523(a)(6), thus, is condensed into a single inquiry of whether there exists `either an objective substantial certainty of harm or a subjective motive to cause harm' on the part of the debtor." In re Williams, 337 F.3d 504, 508 (5th Cir. 2003) (quoting Miller v. J.D. Abrams, Inc. (In re Miller), 156 F.3d 598, 605 (5th Cir. 1998)). "[A] debtor must commit an intentional or substantially certain injury in order to be deprived of a discharge." Id. at 509. "[I]ntent to injure may be established by showing that the debtor intentionally took action that necessarily caused, or was substantially certain to cause, the injury." Texas v. Walker, 142 F.3d 813, 823 (5th Cir. 1998) (citing In re Delaney, 97 F.3d 800, 802 (5th Cir. 1996)).
3. Wright's claims against Blythe-Nelson are not moot, and Blythe-Nelson is not entitled to dismissal of Wright's action based on its bankruptcy. Under the bankruptcy court's order, Wright is entitled to liquidate her claims against Blythe-Nelson. Moreover, although the bankruptcy court has restricted how Wright can collect any judgment against Blythe-Nelson that she obtains in this lawsuit, "a case is not mooted by the fact that an impecunious judgment debtor may lack the means to satisfy a judgment." MCI Telecomms. Corp. v. Credit Builders of Am., Inc., 2 F.3d 103, 104 (5th Cir. 1993) (citing cases). "The general rule is that claims for damages or other monetary relief automatically avoid mootness, so long as the claim remains viable. Damages should be denied on the merits, not on grounds of mootness." Id. at 105 (internal quotation marks and brackets omitted) (quoting Triland Holdings Co. v. Sunbelt Serv. Corp., 884 F.2d 205, 208 (5th Cir. 1989)).
4. The preponderance of the evidence standard governs Wright's claims for intentional infliction of emotional distress, sexual harassment under Title VII, assault and battery, and actual damages. A preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind of the trier of fact a belief that what is sought to be proved is more likely true than not true.
5. The clear and convincing evidence standard governs Wright's claims for exemplary damages for intentional infliction of emotional distress and assault and battery, including the necessary predicate finding that Blythe acted with malice. See Tex. Civ. Prac. Rem. Code Ann. § 41.003(b) (Vernon Supp. 2004-05). "`Clear and convincing' [evidence] means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Civ. Prac. Rem. Code Ann. § 41.001(2) (Vernon Supp. 2004-05).
6. "The general rule in torts is that a cause of action accrues when the wrongful act causes an injury." Burke v. Union Pac. Resources Co., 138 S.W.3d 46, 58 (Tex.App. 2004, pet. filed) (citing Dickson Constr., Inc. v. Fid. Deposit Co. of Md., 960 S.W.2d 845, 851 (Tex.App. 1997, no pet.)). "One exception to the general rule is a continuing tort." Id. (citing Horseshoe Bay Resort Sales Co. v. Lake Lyndon B. Johnson Improvement Corp., 53 S.W.3d 799, 812 (Tex.App. 2001, pet. denied); First Gen. Realty Corp. v. Maryland Cas. Co., 981 S.W.2d 495, 501 (Tex.App. 1998, pet. denied); Dickson, 960 S.W.2d at 851). "A cause of action for a continuing tort does not accrue until the defendant's tortious act ceases." Id. (citing First Gen. Realty, 981 S.W.2d at 501).
7. Regarding Wright's claim for intentional infliction of emotional distress, acts occurring before May 5, 1997 can be used to show background and context for acts that occurred after that date. See Jackson v. Creditwatch, Inc., 84 S.W.3d 397, 405 (Tex.App. 2002, pet. filed) (citing Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex.App. 1997, writ denied)). The trier of fact can also consider Wright's entire relationship with Blythe in determining whether she has proved her claim for intentional infliction of emotional distress. Toles v. Toles, 45 S.W.3d 252, 262 (Tex.App. 2001, pet. denied). Blythe's actions that preceded May 5, 1997 cannot, however, form the basis for awarding Wright damages for intentional infliction of emotional distress. See Jackson, 84 S.W.3d at 405 (citing Soto, 942 S.W.2d at 677).
8. Assuming arguendo that assault and battery is a continuing tort, acts occurring before May 5, 1997 can be used to show background and context for acts that occurred after that date, but they cannot form the basis for awarding Wright damages for assault and battery. See Jackson, 84 S.W.3d at 405 (addressing intentional infliction of emotional distress).
9. "An employee may recover damages for intentional infliction of emotional distress in an employment context as long as the employee establishes the elements of the cause of action." GTE S.W., Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999) (citing Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993)). "To recover damages for intentional infliction of emotional distress, a plaintiff must prove that: (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 resulting emotional distress was severe." Id. (citing Standard Fruit Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998)). "In addition, `[a] claim for intentional infliction of emotional distress cannot be maintained when the risk that emotional distress will result is merely incidental to the commission of some other tort.'" Id. (quoting Standard Fruit, 985 S.W.2d at 68). "Accordingly, a claim for intentional infliction of emotional distress will not lie if emotional distress is not the intended or primary consequence of the defendant's conduct." Id. (citing Standard Fruit, 985 S.W.2d at 68).
10. "[I]ntentional infliction of emotional distress is not available as an independent cause of action unless the actor intends to cause severe emotional distress or severe emotional distress is the primary risk created by the actor's reckless conduct." Standard Fruit, 985 S.W.2d at 63.
11. The trier of fact "may find a defendant acted recklessly if he knows or has reason to know of facts that create a high degree of risk of harm to another, and deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference to that risk." Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 131 S.W.3d 113, 121 (Tex.App. 2004, pet. filed) (addressing intentional infliction of emotional distress) (citing Twyman v. Twyman, 855 S.W.2d 619, 624 (Tex. 1993)).
12. "To be extreme and outrageous, a defendant's conduct must be `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'" Williams v. First Tenn. Nat'l Corp., 97 S.W.3d 798, 804-05 (Tex.App. 2003, no pet.) (quoting Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 610 (Tex. 2002)). "Merely insensitive or rude behavior is not extreme and outrageous. Likewise, `mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct.'" Id. at 805 (citation omitted) (quoting Tex. Farm Bureau, 84 S.W.3d at 610). "Whether a defendant's conduct is `extreme and outrageous' is a question of law." Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001) (citing Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999)). Initially, the court must decide whether the conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. "Only if reasonable minds may differ does the fact finder determine whether, in a particular case, the conduct was sufficiently extreme and outrageous to result in liability." Behringer v. Behringer, 884 S.W.2d 839, 843 (Tex.App. 1994, writ denied). "Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, `Outrageous.'" Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996) (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)). "[W]hen repeated or ongoing severe harassment is shown, the conduct should be evaluated as a whole in determining whether it is extreme and outrageous." GTE, 998 S.W.2d at 616.
13. "Emotional distress includes all highly unpleasant mental reactions such as embarrassment, fright, horror, grief, shame, humiliation, and worry." GTE, 998 S.W.2d at 618 (citing Washington v. Knight, 887 S.W.2d 211, 216 (Tex.App. 1994, writ denied); Havens v. Tomball Community Hosp., 793 S.W.2d 690, 692 (Tex.App. 1990, writ denied)).
14. "Severe emotional distress is distress that is so severe that no reasonable person could be expected to endure it." GTE, 998 S.W.2d at 618 (citing Washington, 887 S.W.2d at 216). "The intensity and duration of the distress are factors to be considered in determining its severity." Toles, 45 S.W.3d at 263 (citing Behringer, 884 S.W.2d at 844).
15. Texas courts have held that evidence similar to that which Wright proved in this case is sufficient to establish severe emotional distress. See, e.g., Parsons v. Johnson, 1997 WL 528988, at *2-*3 (Tex.App. 1997, no pet.) (not designated for publication) (bench trial).
16. Under Texas law, mental anguish is defined as intense pain of body or mind or a high degree of mental suffering. Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 394 (Tex.App. 2000, pet. denied) (citing Phar-Mor, Inc. v. Chavira, 853 S.W.2d 710, 712 (Tex.App. 1993, writ denied)). It is something more than mere worry, anxiety, vexation, or anger. Id. It is more than disappointment, resentment, or embarrassment. To recover for mental anguish, the plaintiff must prove such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation. A mental anguish damages award requires evidence of a high degree of mental pain and distress that is "more than mere worry, anxiety, vexation, embarrassment, or anger." Stevens v. Nat'l Educ. Ctrs., Inc., 11 S.W.3d 185, 185 (Tex. 2000) (per curiam).
17. Because Wright proved each of the elements of her claim for intentional infliction of emotional distress against Blythe, she is entitled to recover from Blythe the actual damages that the court has found in its findings of fact.
18. Because Blythe committed intentional infliction of emotional distress during the course and scope of his employment with Blythe-Nelson, Blythe-Nelson is jointly and severally liable for the actual damages that the court has found in its findings of fact. Moreover, even if he acted outside the course and scope of his employment, his status as a partner of Blythe-Nelson is sufficient to impute liability to Blythe-Nelson with regard to his actions taken in the workplace. See GTE, 998 S.W.2d at 618 (addressing vice-principal of corporation).
19. Under Texas law, a plaintiff can recover exemplary damages when, inter alia, the defendant acts with malice. Tex. Civ. Prac. Rem. Code Ann. § 41.003(a)(2) (Vernon Supp. 2004-05). Under the version of Texas law that applies to this case, "`[m]alice' means: (A) a specific intent by the defendant to cause substantial injury to the claimant; or (B) an act or omission: (i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (ii) of which the actor had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others." Tex. Civ. Prac. Rem. Code Ann. § 41.001(7) (Vernon 1997) (amended 2003).
20. Under Texas law, exemplary damages mean damages awarded as a penalty or by way of punishment. Exemplary damages include punitive damages. In determining the amount of exemplary damages, the trier of fact should consider evidence relating to (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety; and (6) the net worth of the party against whom the damages will be awarded. See Tex. Civ. Prac. Rem. Code Ann. § 41.011(a) (Vernon 1997).
21. Under Texas law, exemplary damages may be awarded against a principal or master because of the acts of its agent if the agent was employed in a managerial capacity and was acting in the scope of that managerial capacity. See, e.g., Delta Drilling Co. v. Cruz, 707 S.W.2d 660, 664 (Tex.App. 1986, writ ref'd n.r.e.) (addressing liability of corporation).
22. Because Wright proved that Blythe acted with malice when he committed intentional infliction of emotional distress, she is entitled to recover from Blythe the exemplary damages that the court has found in its findings of fact.
23. Because Wright proved that Blythe acted with malice when he committed intentional infliction of emotional distress, and that at the time he was employed in a managerial capacity with Blythe-Nelson and was acting in the scope of that managerial capacity, she is entitled to recover from Blythe-Nelson the exemplary damages that the court has found in its findings of fact.
24. "The elements for a cause of action for assault and battery are the same in civil and criminal suits." Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex.App. 1999, no pet.) (citing Price v. Short, 931 S.W.2d 677, 687 (Tex.App. 1996, no writ)). "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.'" Id. (quoting Tex. Pen. Code Ann. § 22.01(a)(3) (Vernon Supp. 2004-05)). A person commits a battery if, inter alia, he intentionally or knowingly causes physical contact with another when he knows or should reasonably believe the other person will regard the contact as offensive or provocative. See Childers v. A.S., 909 S.W.2d 282, 292 (Tex.App. 1995, no writ).
25. Because Wright proved each of the elements of her claim for assault and battery against Blythe, she is entitled to recover from Blythe the actual damages that the court has found in its findings of fact.
26. To avoid awarding Wright a double recovery, the court has not included in its finding of the amount of physical pain and mental anguish damages for intentional infliction of emotional distress any damages for conduct that also constitutes assault and battery.
27. Because Blythe committed assault and battery during the course and scope of his employment with Blythe-Nelson, Blythe-Nelson is jointly and severally liable for the actual damages that the court has found in its findings of fact. Moreover, even if he acted outside the course and scope of his employment, his status as a partner of Blythe-Nelson is sufficient to impute liability to Blythe-Nelson with regard to his actions taken in the workplace. See GTE, 998 S.W.2d at 618 (addressing vice-principal of corporation).
28. Because Wright proved that Blythe acted with malice when he committed assault and battery, she is entitled to recover from Blythe the exemplary damages that the court has found in its findings of fact.
29. Because Wright proved that Blythe acted with malice when he committed assault and battery, and that at the time he was employed in a managerial capacity with Blythe-Nelson and was acting in the scope of that managerial capacity, she is entitled to recover from Blythe-Nelson the exemplary damages that the court has found in its findings of fact.
30. The plaintiff in any Title VII sexual harassment case must, as an initial matter, establish that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual harassment; and (3) the harassment was based on sex. Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 381-82 (5th Cir. 2003) (citing Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999); La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002)). "[I]t is important to note that judicial inquiry into the question whether a given instance of harassment constitutes sex-based discrimination is entirely separate from inquiry into whether the harasser's conduct was serious enough to constitute either quid pro quo or hostile environment harassment." La Day, 302 F.3d at 478.
31. Under Title VII, if an employee complaining of sexual harassment by a supervisor has suffered a tangible employment action, the claim is classified as a quid pro quo case. Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir. 2002), cert. denied, 537 U.S. 1188 (2003).
32. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." La Day, 302 F.3d at 481-82 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
33. To establish a quid pro quo sexual harassment claim, "[t]he plaintiff must show that [she] suffered a `tangible employment action' that `resulted from [her] acceptance or rejection of [her] supervisor's alleged sexual harassment.'" La Day, 302 F.3d at 481 (quoting Casiano v. ATT Corp., 213 F.3d 278, 283 (5th Cir. 2000)). To establish a quid pro quo sexual harassment claim, the plaintiff is required to show a nexus between the tangible employment action and the plaintiff's acceptance or rejection of her supervisor's alleged sexual harassment. See Casiano, 213 F.3d at 283.
34. Wright is not entitled to recover under Title VII for quid pro quo sexual harassment because she failed to prove that her termination resulted from her rejection of Blythe's sexual harassment.
35. Under Title VII, if an employee complaining of sexual harassment by a supervisor has not suffered a tangible employment action, the claim is classified as a hostile environment case. Wyatt, 297 F.3d at 409.
36. To prove a hostile work environment cause of action, the plaintiff must establish each of the following five elements: (1) the employee belongs to a protected group, (2) the employee was subject to unwelcome sexual harassment, (3) the harassment complained of was based upon sex, (4) the harassment complained of affected a term, condition or privilege of employment, i.e., the sexual harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment, and (5) respondeat superior, i.e., that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Watts, 170 F.3d at 509 (citing Jones v. Flagship Int'l, 793 F.2d 714, 719-720 (5th Cir. 1986)).
37. In determining whether a workplace constitutes a hostile work environment, courts may consider the following circumstances: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
38. "`In order to be actionable under [title VII], a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.'" La Day, 302 F.3d at 482 (quoting Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998))). "Whether an environment meets this standard depends on `all the circumstances,' including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Faragher, 524 U.S. at 787).
39. "When the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris, 510 U.S. at 21 (citations omitted).
40. In a hostile environment case, to hold an employer vicariously liable for a supervisor's actions, the conduct must be severe or pervasive. Wyatt, 297 F.3d at 409. "[I]f the conduct was severe and pervasive, the employer is vicariously liable unless the employer can establish both prongs of the conjunctive Ellerth/Faragher affirmative defense[.]" Wyatt, 297 F.3d at 409.
41. "To establish this defense, the employer must show that (1) the employer exercised reasonable care to prevent and correct promptly any sexual harassment, and (2) the complaining employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer." Wyatt, 297 F.3d at 409.
42. The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Title VII does not bar a plaintiff from recovering damages for that portion of the hostile environment that falls outside the period for filing a timely charge. See id. at 118-19.
43. Wright is entitled to recover under Title VII for hostile work environment sexual harassment because she proved each of the essential elements of the claim and Blythe-Nelson failed to prove that it exercised reasonable care to prevent and correct promptly any sexual harassment and failed to prove that Wright unreasonably failed to take advantage of any preventative or corrective opportunities that Blythe-Nelson provided.
44. Under Title VII, the trier of fact may award compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, if it finds that these were caused by the violation of Title VII. No evidence of the monetary value of such intangible things as pain and suffering need be introduced in evidence. There is no exact standard for fixing the compensation to be awarded for these elements of damage. Any award made should be fair in light of the evidence presented at the trial. Mental anguish implies a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation.
45. Title VII limits the compensatory damages that Wright can recover. Because Blythe-Nelson had more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the relevant year, the sum of the amount of compensatory damages awarded for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded, shall not exceed $50,000. See 42 U.S.C. § 1981a(b)(3)(A).
46. Because Wright proved each of the elements of her Title VII hostile work environment claim, she is entitled to recover from Blythe-Nelson the compensatory damages that the court has found in its findings of fact.
47. Wright seeks to hold Blythe individually liable under Title VII on a theory of alter ego. See Pretrial Order § A-1 (allegation no. 9) and § D-1(17); 2d Am. Compl. ¶ 8.01. To be liable under Title VII, however, a person must be the plaintiff's employer. See Grant v. Lone Star Co., 21 F.3d 649, 651 (5th Cir. 1994). Under Title VII, an alter ego-type theory is available to establish that an employer is vicariously liable for sexual harassment committed by a supervisor. See Burlington, 524 U.S. at 758. But where the alter ego-type test is met, it is the employer who is liable under Title VII, not the supervisor whose conduct rendered the employer liable. Accordingly, Blythe cannot be held liable individually to Wright under Title VII under an alter ego theory where, as here, he was not her employer. In reaching this conclusion, the court has no occasion to decide whether today's judgment against Blythe-Nelson is collectable from Blythe under any particular theory of Texas partnership, insolvency, or other law.
48. Under Texas law, a judgment in a personal injury case earns prejudgment interest. Tex. Fin. Code Ann. § 304.102 (Vernon Supp. 2004). Prejudgment interest may not be assessed or recovered, however, on an award of exemplary damages. Tex. Civ. Prac. Rem. Code Ann. § 41.007 (Vernon 1997).
49. "The prejudgment interest rate is equal to the postjudgment interest rate applicable at the time of judgment." Tex. Fin. Code Ann. § 304.103 (Vernon Supp. 2004-05).
50. With an exception that is immaterial under the facts of this case, "prejudgment interest accrues on the amount of a judgment during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed and ending on the day preceding the date judgment is rendered. Prejudgment interest is computed as simple interest and does not compound." Tex. Fin. Code Ann. § 304.104 (Vernon Supp. 2004-05).
51. Although the parties stipulated that Wright filed her discrimination charge with the EEOC on April 7, 1998, they did not stipulate, and Wright did not prove, the date she notified defendants that she was making claims against them under Texas law. The court will therefore use the date Wright filed suit — May 5, 1999 — as the date to commence the accrual of prejudgment interest for her Texas-law claims.
52. Under Texas law, Wright is entitled to an award of prejudgment interest at the rate of 1.98% per annum simple interest, which does not compound, from May 5, 1999 to August 25, 2004 on the actual damages awarded to her for intentional infliction of emotional distress and assault and battery.
53. Under Title VII, courts generally should calculate interest on past damages based on the date of the adverse employment action. Prejudgment interest should apply to all past injuries, including past emotional injuries. Prejudgment interest is not recoverable, however, for future emotional harm under Title VII. Thomas v. Tex. Dep't of Crim. Justice, 297 F.3d 361, 372-73 (5th Cir. 2002).
54. Under Title VII, prejudgment interest can be calculated at the federal rate of interest. See Williams v. Trader Publ'g Co., 218 F.3d 481, 488 (5th Cir. 2000) (per curiam) ("This court previously has approved the imposition of the federal rate of interest in Title VII cases as making a plaintiff whole, but has not held that only the federal rate of interest is appropriate for this purpose.").
55. 28 U.S.C. § 1961 fixes the rate of prejudgment interest when it is a federal question that must be governed by federal law. See Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 7 F.3d 1203, 1209 (5th Cir. 1993).
56. Under Title VII, Wright is entitled to an award of prejudgment interest at the rate of 1.98% per annum, calculated according to 28 U.S.C. § 1961, from November 2, 1997 to August 25, 2004. Because the court cannot easily calculate the date or dates of the adverse employment actions when liability is based on a series of actions that together create a hostile work environment, and because the court has determined the amount of Wright's compensatory damages based on such a series of actions, the court in its discretion determines that interest should begin to run on November 2, 1997, the date of the incident at the Old Warsaw restaurant. To the extent the foregoing is a mixed finding of fact and conclusion of law, the court adopts the pertinent parts as factual findings or legal conclusions.
57. The court has not considered the deposition testimony of Susan McGinnis in reaching its decision because Wright did not establish under Fed.R.Evid. 804(b)(1) that defendants had an opportunity and similar motive to develop her testimony by direct, cross, or redirect examination in the lawsuit in which the deposition was taken. The court denies Wright's July 23, 2004 motion to admit prior deposition testimony at trial. Even without her testimony, however, the court has found that Blythe subjected Wright to a hostile work environment.
58. Wright is not entitled to any relief other than that which the court has expressly concluded should be awarded to her.
59. A conclusion of law that should be treated as a finding of fact is hereby adopted as such, and a finding of fact that should be treated as a conclusion of law is hereby adopted as such.