IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________________________
No. 98-41056 _______________________________________
LOMA CARROLL and JESUS SOLIZ, JR.,
Plaintiffs-Appellees-Cross-Appellants,
versus
HOECHST CELENESE CORP.,
Defendant-Appellant-Cross-Appellee.
_________________________________________________
Appeals from the United States District Court for the Southern District of Texas (97-CV-349) _________________________________________________
December 17, 1999
Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges:
WIENER, Circuit Judge:*
In this case arising under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), with pendant
state law claims, Plaintiff-Appellee-Cross-Appellant Loma Carroll
(“Carroll”) challenges the jury verdict finding that Defendant-
Appellant-Cross-Appellee Hoechst Celenese Corporation (“HCC”)
violated Title VII but that Carroll did not prove individual
damages resulting from the violation. HCC, in its appeal,
* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. challenges the jury verdict finding it liable for intentional
infliction of emotional distress under Texas law and awarding
Carroll $250,000 in compensatory and punitive damages. HCC also
challenges the jury finding that it violated Title VII. We affirm
in part and reverse in part.
I.
Facts and Proceedings
Carroll worked for HCC in its Bishop, Texas chemical plant as
an operator in the Methanol Oxidation unit (the “MO”). Her
employment with HCC began on May 24, 1993. The MO operated on a
24-hour basis with two rotating 12-hour shifts. There was no
permanent supervisor over the shifts which instead ran as “self-
directed” work teams, with the senior operators rotating as “lead
operator” for a shift. The lead operator handled supervisory
duties such as hearing employee complaints, giving and enforcing
work assignments, and reassigning operators. The operators
reported to Rick Villarreal (“Villarreal”), Operations Specialist,
who worked a “straight days” schedule. Ronnie Hilbrich
(“Hilbrich”) was the supervisor in charge of the larger area of the
HCC plant that included the MO unit.
HCC terminated Carroll’s employment on September 17, 1996,
after an investigation revealed that she had falsified chemical
tank readings. At that time, she was being considered for a
promotion to the highest operator position in the MO. In the
September 7, 1996 performance review relevant to her possible
2 promotion, Carroll received positive comments from her supervisors.
In her own statement of interest in the promotion, she spoke highly
of HCC and her experience there, indicating that she was “acutely
aware of the integrity” of HCC, that she knew she could “count on”
her supervisor, “Jesse Solis [sic]” and on “my fellow operators to
help me when the need arises.” She also stated that she felt she
had “found a home in the MO unit.” Ten days after she was fired,
Carroll filed an employment discrimination claim with the state
Human Relations Commission and with the EEOC, alleging that HCC
violated Title VII by firing her not for falsification of records
but rather in retaliation for complaining about perceived sexual
harassment.
On June 30, 1997, more than nine months after those filings,
Carroll and Plaintiff Jesus Soliz, Jr. filed the instant lawsuit
against their former employer, HCC, alleging that they were
terminated in retaliation for protected opposition conduct, in
violation of Section 704(a) of Title VII. Specifically, they
alleged that they opposed what they perceived as sexual harassment
of Carroll. Carroll and Soliz also asserted claims for intentional
infliction of emotional distress under Texas law, and Carroll
asserted a separate claim under Title VII for hostile work
environment sexual harassment. On April 1, 1998 Carroll amended
her intentional infliction of emotional distress claim ——
originally based (like Soliz’s claim) on defamation in the form of
workplace rumors regarding sexual misconduct —— to allege distress
3 stemming from the harassment and retaliation itself.
HCC moved for summary judgment on Soliz’s retaliation and
intentional infliction claims, on the allegedly time-barred
portions of Carroll’s hostile work environment claims, and on
Carroll’s intentional infliction claim. The district court granted
the motion in respect to Soliz’s intentional infliction claim.
The remainder of the claims were tried to a jury. It returned
a verdict finding that (1) Soliz had opposed what he reasonably
believed to be sexual harassment, (2) Carroll had been subjected to
a sexually hostile work environment, (3) neither Carroll nor Soliz
had been fired in retaliation for opposing sexual harassment, (4)
Carroll suffered no damages as a result of the sexual harassment,
(5) one or more employees of HCC intentionally inflicted emotional
distress on Carroll, (6) the conduct was ratified by one of HCC’s
managers, and (7) Carroll should be compensated $50,000 for severe
emotional distress and related injuries, and should receive
$200,000 in punitive damages for HCC’s malicious and willful
conduct.
Following the verdict, HCC moved for judgment as a matter of
law, arguing that the jury erred in finding that HCC created a
sexually hostile environment in violation of Title VII and in
awarding damages for intentional infliction of emotional distress.
The district court denied the motion, holding that a reasonable
juror, hearing all the evidence presented, could find that (1) the
conduct complained of was extreme and outrageous, and (2) Carroll
4 suffered severe emotional distress.
Carroll moved for a new trial on the issue of damages for the
Title VII violation, arguing that the jury’s verdict awarding no
damages after finding that Carroll was subjected to a sexually
hostile work environment was inconsistent with the award of
$250,000 damages for intentional infliction of emotional distress.
The district court denied the motion, explaining that there was “at
least one logical interpretation of the jury’s award: it believed
that the injury suffered by Carroll was the result of acts which
constituted intentional infliction of emotional distress yet which
did not constitute sexual harassment.”
Carroll presented evidence of various incidents in support of
her claims that she was subjected to a sexually hostile work
environment and that she suffered severe emotional distress.
Carroll was assigned to the MO unit soon after she began her
employment with HCC and she was the only woman in the unit.
Carroll testified about various incidents that occurred during her
training on the unit. For example, an operator told her, “you
won’t be here long, women don’t last long here in the MO units.”
Another operator made hostile and obscene comments about women that
made Carroll feel uncomfortable. Carroll’s trainer, Oscar Lopez,
on one occasion blocked her way as she was exiting a room, grabbed
her, and tried to kiss her. At a unit party, another co-worker
rubbed his hands and legs against Carroll’s legs underneath a
picnic table and made unwelcome sexual advances.
5 Carroll testified that an hourly operator on another shift,
Ramon Perez, had been flirtatious and had casually touched her from
the time she started work on the MO; on one particular occasion in
1994, he grabbed her from behind, placing his hands on her breasts,
pressing his groin into her buttocks, and leaning around to kiss
her on the face and neck. Carroll reported the incident to
Villarreal and Hilbrich who told her they would “take care of it.”
Following that incident, Perez began making disparaging comments to
Carroll about her work performance and on occasion “accidentally”
rubbed against her, touching her breasts. Carroll and Perez rarely
worked on the same shift, therefore, the encounters were relatively
infrequent.
Carroll also testified that a supervisor, Henry Aleman, when
shaking her hand, would “have this really soft grip and he would
just massage my hand and then he would take his other hand and run
his hand up to my elbow and then up my arm and start rubbing the
side of my breasts.” She also testified that he would come up
behind her, rub her shoulders, and try to run his hands down her
chest.
Carroll also presented evidence of a sexual harassment
complaint brought in 1994 by Teresa Dixon, an employee in the
paraform unit, against Aleman and other employees in her unit.
Carroll was interviewed in connection with that complaint, and she
discussed her knowledge of continuing problems with sexual
harassment by several individuals. Dixon told the employees in
6 HCC’s human resources unit, to whom she reported the allegations of
harassment, that some employees told her that Carroll “was going to
be next.” The offenders identified in the Dixon investigation were
not terminated but were placed on one-year probation.
Carroll testified that following her cooperation in Dixon’s
complaint, the attitudes and behavior of the men on the MO unit
shifted from flirtation and sexual innuendo to hostility.
Specifically, Carroll described statements by Dale Kennemer and
Larry Pena, each of whom, as lead operators on shifts, had
supervisory authority over her, that if any woman in the MO
complained of sexual harassment, they would know how to get rid of
her. They also told her that they knew how to get the “date rape
drug” and could administer it without anyone knowing, and then they
could do anything they wanted to her.
Carroll described various other incidents, such as a bald co-
worker asking her in the presence of a bald shift supervisor if she
had “ever had sex with a bald man”; a co-worker consistently
referring to her as “sweetheart, honey, or baby” rather than by her
name; and incidents in the unisex bathroom including a stall
“plastered with feminine napkins” and obscene graffiti.
In addition to evidence of incidents at work or directly
attributable to HCC employees, Carroll also testified about
incidents for which she could not establish a definitive connection
to HCC, but she contends that a reasonable juror could infer that
HCC or its employees were responsible for those incidents. For
7 example, Carroll testified that between 1994 and 1995 she received
obscene phone calls at home and at work. Carroll’s daughter
received one of the calls at home which made reference to the MO.
The calls Carroll received at work could be identified by the
distinctive ring as coming from another extension in the plant.
HCC investigated the calls but could not identify any person or
persons responsible for making them. Carroll also reported to her
supervisors that she received anonymous, sexually suggestive pages
(such as a repeated string of “69s”) on the pager issued to her by
HCC. Again, an investigation by HCC did not result in
identification of the offender or offenders.
Carroll also testified that she had received three anonymous
gifts at her home. The first was a bouquet of flowers on
Valentine’s Day 1994, with an unsigned card praising her work in
the MO. A second bouquet of flowers arrived in November 1994, with
the same anonymous message. Finally, on December 25, 1995, Carroll
received a “nightie” and a “basket of perfume” with an anonymous
card reading, “Watch out when you’re at MO3.” Carroll testified
that she did not report the incidents to HCC until after receiving
the third gift. The sender was never identified.
In February or March 1996, Carroll’s keys were stolen out of
her unlocked car in the HCC parking lot. Carroll reported the
incident to Villarreal but not to police or plant security. A few
weeks after that theft, Carroll’s home was burglarized and
electronic equipment was stolen. Carroll presented no evidence
8 linking the incidents to each other or to anyone at HCC.
In June 1996, Carroll found what appeared to be feces on the
hood of a unit pickup truck that she drove on occasion. The truck
normally would be driven by the lead operator on the shift, who
that night was Kennemer, but the truck was available to all
operators on the shift. The night of the incident, Kennemer had
driven the truck just before Carroll, and she conceded that the
prank was not necessarily directed at her. Carroll reported this
incident to Villarreal, but the perpetrator was never identified.
On August 19, 1996 Carroll discovered a “mobile” in her
employee locker consisting of condoms, birth control suppositories,
small tubes of Vaseline or K-Y Jelly, and an assortment of motel
keys. Carroll reported the incident to Hilbrich who conducted an
investigation with a representative of the Human Resources
department. They questioned every employee in Carroll’s unit and
reiterated to each employee the company’s policy against sexual
harassment —— including the fact that such conduct could lead to
termination. The investigation was unsuccessful in identifying the
person or persons who had put the items in Carroll’s locker.
II.
Standards of Review
At the close of all the evidence and again after entry of the
verdict, HCC moved for judgment as a matter of law on the following
9 issues: (1) that Soliz opposed what he reasonably believed to be a
sexually hostile work environment, (2) that Carroll was subjected
to a sexually hostile work environment, and (3) that she suffered
intentional infliction of emotional distress. The district court
denied the motions. We will not reverse the court’s denial of a
motion for judgment as a matter of law unless the facts and
inferences point so strongly and overwhelmingly in favor of one
party that a reasonable jury could not have concluded otherwise.1
Carroll too sought post-judgment relief, moving for a new
trial on the issue of the absence of damages awarded for the Title
VII violation. As the court denied the motion, we review the
denial of damages not for “clear error”2 but for abuse of
discretion. If a “jury award is reviewed indirectly through the
conduit of the trial court’s response to a motion for a new trial
on the issue of damages, it is the propriety of the judge’s action
rather than the jury’s decision that is reviewed. Thus, the abuse
of discretion standard applies.”3
III.
Limitations Periods
Carroll can recover under Title VII only for sexual harassment
1 Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc). 2 Gautreaux v. Scurlock Marine, Inc., 84 F.3d 776, 782 (5th Cir. 1996). 3 Id.
10 that occurred during the 300 days before she filed her Charge of
Discrimination with the EEOC.4 The district court properly charged
the jury on the limitations period. Carroll was fired on September
17, 1996 and filed a charge with the state agency and the EEOC on
September 27, 1996. December 1, 1995, was the 300th day before
September 27, 1996; thus, only conduct that occurred on or after
December 1, 1995, can be the basis of recovery for damages caused
by the sexually hostile work environment.
In considering Carroll’s claim for intentional infliction of
emotional distress under Texas law, we note that Carroll can
recover only for conduct that occurred during the two years prior
to the filing of her complaint, as Texas has a two-year statute of
limitations for personal injury actions.5 Carroll filed her
original complaint on December 30, 1997, seeking recovery for,
among other causes, intentional infliction of emotional distress on
the basis of allegedly defamatory statements. On April 1, 1998,
the district court granted Carroll leave to amend her complaint to
change the factual basis for the intentional infliction claim, to
allege damages from the harassment and retaliation itself rather
than from defamation. The court treated the date of that order as
the filing date of Carroll’s Third Amended Complaint. Accordingly,
we consider the claim filed on April 1, 1998 and allow Carroll to
4 See 42 U.S.C. § 2000e-5(e); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394-95 (1982). 5 Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).
11 recover, if at all, only for conduct occurring on or after April 1,
1996. HCC properly raised the affirmative defense of the statute
of limitations in both its original and amended answers; the
defense was not waived.
Having stated these applicable limitations periods on
Carroll’s theories of recovery, we emphasize that —— as the
district court properly instructed the jury —— evidence concerning
time-barred activity is nevertheless relevant and may be used to
illuminate the current practice at issue.6 The jury could not,
however, impose liability for any sexual harassment that occurred
prior to December 1, 1995 or for conduct prior to April 1, 1995
causing intentional infliction of emotional distress.
IV.
Title VII - Sexually Hostile Work Environment
Carroll presented sufficient evidence on which a reasonable
jury could find that she was subjected to a sexually hostile work
environment in violation of Title VII. Nevertheless, the district
court did not err in declining to grant a new trial on the issue of
damages even though the jury awarded no damages to Carroll for the
Title VII violation.
To prevail on a Title VII claim of hostile work environment
sexual harassment, the plaintiff must prove that: (1) she belongs
6 Cortes v. Maxus Exploration Co., 977 F.2d 195, 200 (5th Cir. 1992) (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)); Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex. App. 1997).
12 to a protected group; (2) she was subjected to unwelcome sexual
harassment; (3) the harassment was because of sex; (4) the
harassment complained of affected a term, condition, or privilege
of employment; and (5) the employer knew or should have known of
the harassment and failed to take prompt remedial action.7
Applying each of these elements, we conclude: (1) Carroll, as
a woman, is member of a protected group; (2) she did not consent
to, encourage, or welcome the sexual comments or other actions
towards her; and (3) at least some of the harassment was because of
her sex. The Supreme Court, in Oncale v. Sundowner Offshore
Services, Inc.,8 clarified that Title VII’s proscription against
discrimination “because of . . . sex” does not refer to behavior
motivated solely by sexual desire but strikes at situations in
which members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex are
not.9 A reasonable juror could find that Carroll, especially as
the sole female employee on the MO, was subjected to working
conditions that the male employees were not, even if not all of the
conduct or comments were motivated by sexual desire.
As to element (4), a reasonable jury could find that the
harassment altered the terms or conditions of Carroll’s employment.
7 Jones v. Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir. 1986). 8 118 S. Ct. 998 (1998). 9 Id. at 1002.
13 “When the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently sever or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment, Title VII is violated.”10 Whether the
harassment was sufficiently “severe or pervasive”11 to alter the
conditions of employment and create an abusive working environment
is a question to be determined with regard to the “totality of the
circumstances.”12 As discussed above, the jury could not find Title
VII liability on the basis of events or incidents outside the 300-
day period prior to Carroll’s filing her complaint with the EEOC,
but the jury could consider evidence of more remote incidents to
inform its findings about the totality of the circumstances.
Events definitely occurring within the relevant 300-day
period, after December 1, 1995, include (in reverse chronological
order):13 (1) the locker incident on August 19, 1996, (2) the truck
incident in June 1996, (3) & (4) the theft of car keys and
10 Id. at 1001 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). 11 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). 12 Jones, 793 F.2d at 720. 13 We recognize that some of the incidents are difficult to attribute to HCC or to the workplace at all, e.g., the residential burglary, and that other incidents were committed by an unidentified perpetrator and at most suggest some nexus to the workplace, e.g., the gift cards referring to the MO. The record nevertheless provides a sufficient basis (albeit barely) on which to find a hostile workplace, and as we are affirming the judgment of the district court, we need not further refine each factual determination.
14 residential burglary both in February or March of 1996, (5) the
delivery of a gift basket and nightgown to Carroll’s home on
December 25, 1995, and (6) at least some incidents of “accidental”
rubbing or touching by Perez. Other ongoing conduct, such as
comments or use of “terms of endearment” rather than Carroll’s
proper name by co-workers, as well as obscene phone calls and pages
also may have occurred during the relevant time period.14 On the
basis of the evidence presented, a reasonably jury could find that
Carroll was subjected to harassment that was sufficiently severe or
pervasive to alter the terms and conditions of work.
Finally, on element (5), a reasonable jury could find --
although this is a closer question -- that HCC either knew or
should have known of the harassment and failed to take prompt
remedial action. Carroll on several occasions complained to her
supervisors (and, at least with regard to the locker incident, to
human resource personnel) about the harassment and specifically
complained about each of the incidents listed above that occurred
within the limitations period. Therefore, HCC clearly had notice
of the harassment. In response to each of the listed incidents,
HCC conducted an investigation but was unable to identify a
perpetrator for any of the incidents. Carroll contends that even
14 The parties dispute the timing of the obscene phone calls. Carroll testified at trial that the calls occurred from 1994 to 1995 but started again in late 1995 to early 1996. HCC contends that Carroll’s suggestion regarding the calls re-starting is inconsistent with time frames she describes for other incidents.
15 though the investigations were inconclusive, HCC could have done
more, such as holding meetings with employees affirming the
importance of the policy against harassment.
Other conduct, such as Perez’s touching or grabbing, did not
present the same need for investigation as the anonymous incidents,
but instead, was clearly attributable to a specific, non-
supervisory employee at the time it occurred. In response to
complaints about identifiable conduct of co-workers, Carroll was
assured by the supervisor to whom she complained that he would
“handle it.” There is some evidence in the record on which a jury
could conclude that Carroll’s supervisors took little or no action
in response to her complaints. Even though we find evidence in the
record on which a jury -- and we, were we finding the facts
ourselves -- might find that HCC’s response was adequate, under the
deferential standard of review we are required to apply,15 we
conclude that a reasonable jury also could find that HCC failed
promptly to take reasonable remedial action. Thus the final
element of the hostile work environment claim is met.
Even though a reasonable jury could find that Carroll
established the elements of a Title VII hostile work environment
sex discrimination claim, such a jury still could find that she
15 “Even though we might have reached a different conclusion if we had been the trier of fact, we are not free to reweigh the evidence. . . . Within this broad standard of deference, we must focus on whether a reasonable trier of fact could have concluded as the jury did.” Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997).
16 failed to prove actual damages as a result of the violation. To
recover compensatory damages, an employee or former employee must
show more than a violation of Title VII by the employer; he or she
must also show individual damages.16 In the instant case, Carroll
originally sought compensation for economic and non-economic harm.
The jury found, however, that she was not fired in retaliation for
complaining about the sexually hostile work environment and thus
she was not entitled to economic damages for loss of her job.
Carroll does not challenge that finding on appeal. The jury also
found that Carroll did not suffer damages for emotional distress or
other non-economic harm as a result of the workplace sexual
After the jury returned its verdict, Carroll moved for a new
trial on the jury’s finding of no damages for the Title VII
violation. Applying the abuse of discretion standard, we find no
reversible error in the district court’s denial of Carroll’s motion
for a new trial.
In support of her claim for compensatory damages for emotional
distress stemming from sexual harassment, Carroll offered her own
testimony as well as testimony of a physician and a psychologist.
Carroll described her fears for her physical safety at work, which
led her to carry a wrench to protect herself from attacks. She
16 42 U.S.C. § 1981a (authorizing recovery for intentional violations of Title VII); Carey v. Piphus, 435 U.S. 247, 266-67 (1978).
17 also testified that she experienced high blood pressure and anxiety
which she attributed to the harassment at work. Dr. John Schulze,
a physician, testified that Carroll’s high blood pressure,
insomnia, anxiety, and fatigue were caused by stress from sexual
harassment at work. Dr. Barbara Beckham, a psychologist, testified
that Carroll suffered from post-traumatic stress disorder,
adjustment disorder, anxiety, and depression. Beckham admitted,
however, that the post-traumatic stress disorder diagnosis was
controversial and in most cases would be precipitated by more
extreme stressors than those experienced by Carroll. She also
acknowledged that an adjustment disorder could have been caused by
Carroll’s legitimate termination from employment rather than from
the alleged sexual harassment. Finally, Beckham acknowledged that
Carroll’s symptoms were mild and that overall she was in the normal
range of functioning. Based on that evidence, we do not find that
the district court abused its discretion in refusing to grant a new
trial on the issue of damages stemming from the Title VII sexually
hostile work environment violation by HCC.
V.
Intentional Infliction of Emotional Distress
We hold that Carroll failed to establish the elements of an
intentional infliction of emotional distress claim under Texas law
and, accordingly, reverse the jury’s verdict finding HCC liable and
awarding compensatory and punitive damages to Carroll on that
claim. The jury found that one or more employees of HCC
18 intentionally inflicted emotional distress on Carroll and that one
or more of HCC’s managers confirmed, adopted, or failed to
repudiate the conduct of its employees. Accordingly, the jury
entered a judgment of $50,000 damages for emotional distress and
$200,000 punitive damages based on malicious and willful conduct by
HCC. We conclude that Carroll failed to prove the elements of her
state law tort claim and, accordingly, do not reach the issues of
ratification by HCC or the appropriateness of damages.
To recover for intentional infliction of emotional distress,
Carroll must prove: (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.17 Without
reaching the thorny issue of employer liability for intentional
torts of its employees under the first element of the claim, we
find that Carroll failed to establish her claim on other elements.
First, the conduct was not extreme and outrageous and, second,
Carroll did not suffer severe distress.
To be extreme and outrageous, 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 community.”18 “[M]ere insults,
17 GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999). 18 Id. (citing cases and Restatement (Second) of Torts).
19 indignities, threats, annoyances, petty oppressions, and other
trivialities do not rise to the level of extreme and outrageous
conduct.”19 The standard of conduct sufficient to demonstrate
intentional infliction of emotional distress is higher than that
required for a Title VII hostile environment claim.20 For
intentional infliction, however, the jury may consider all conduct,
not just conduct “because of . . . sex.” Indeed, that distinction
was the basis of the district court’s refusal to grant a new trial
to Carroll on the assertion that the jury’s verdict, awarding no
damages for the Title VII claim but awarding compensatory and
punitive damages for the intentional infliction claim, was not
inconsistent.
Even bearing that distinction in mind, we find that the
conduct described by Carroll does not rise to the level that Texas
courts previously have recognized as supporting liability for
intentional infliction of emotional distress, particularly based
only on the evidence within the two-year statute of limitations
period, dating back to April 1, 1996. The evidence on which the
jury could find liability for intentional infliction of emotional
19 Id. at 612. 20 McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 564 (5th Cir. 1998) (noting that “inter-office behavior can rise to the level of intentional infliction of emotional distress,” but the standard for such a claim is “rigorous” and will not be lowered); Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994) (“[E]ven though conduct may violate Title VII as sexual harassment, it does not necessarily become intentional infliction of emotional distress under Texas law.”).
20 distress includes: (1) some of the “accidental” rubbing by Perez
but not the specific grabbing incident, (2) the feces on the truck
incident, and (3) the locker mobile incident.21 Some of the ongoing
casual comments, inappropriate use of terms such as “honey,”
instead of Carroll’s proper name, obscene phone calls, and
incidental touching by co-workers may also have occurred within the
relevant time period. On the basis of that evidence and the high
standard of “outrageousness” required by Texas law,22 we conclude
that no reasonable jury could have found that the conduct within
the limitations period was “atrocious” or “utterly intolerable in
a civilized community.”
In addition, Carroll failed to show severe emotional distress
as required to recover for intentional infliction of emotional
distress. “Emotional distress,” such as could support Title VII
compensatory damages, includes all highly unpleasant mental
reactions such as embarrassment, fright, horror, grief, shame,
humiliation, and worry.23 By contrast, “severe emotional distress”
is distress that is so extreme that no reasonable person could be
expected to endure it.24 As we already determined that Carroll did
21 The car key theft, residential burglary, and Christmas gift incidents considered under the Title VII claim fall outside the limitations period for the intentional infliction of emotional distress claim. 22 Cf. Prunty, 16 F.3d 649; Soto, 942 S.W.2d 671. 23 Bruce, 998 S.W.2d at 618. 24 Id.
21 not present sufficient proof of non-economic, emotional distress
damages under the lower standard of Title VII, we are compelled to
conclude that she did not meet the substantially higher standard
required for the state tort claim. Carroll’s fear, anxiety,
fatigue, high blood pressure, and depression were not so severe
that no reasonable person could be expected to endure such
symptoms. In fact, Carroll’s own psychologist testified that her
symptoms were mild and that overall, she was in the normal range of
functioning.
We conclude that a reasonable jury could not have found that
Carroll was subjected to extreme and outrageous conduct or that she
suffered severe emotional distress. We therefore reverse the entry
of judgment against HCC on the claim of intentional infliction of
emotional distress. Accordingly, we do not reach the issues of
employer ratification of the conduct or the appropriateness of the
damages awarded.
VI.
Conclusion
We conclude that a reasonable jury could have found that HCC
maintained a hostile work environment in violation of Title VII
but, nevertheless, that Carroll failed to prove individual damages
as a result of the violation. The district court did not abuse its
discretion in denying a new trial to Carroll on that issue. We
affirm the district court in regard to the Title VII claim.
In addition, we hold that a reasonable jury could not have
22 found that the conditions and conduct to which Carroll was
subjected rose to the level of “outrageousness” required under
Texas law to state a claim for intentional infliction of emotional
distress. We also conclude that Carroll did not experience
“severe” emotional distress, another element of the state law tort
claim. Therefore, we reverse the district court’s entry of
judgment against HCC on that theory and its award of compensatory
and punitive damages to Carroll.
The judgments of the district court on which both parties
appeal, accordingly, are
AFFIRMED IN PART and REVERSED IN PART.