                   United States Court of Appeals,

                            Fifth Circuit.

                             No. 92-4338.

                Mildred PRUNTY, Plaintiff-Appellant.

                                   v.

     ARKANSAS FREIGHTWAYS, INC., and Chuck Baugh, Defendants-
Appellees.

                            March 21, 1994.

Appeal from the United States District Court for the Eastern
District of Texas.

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

      JOHNSON, Circuit Judge:

      The petition for rehearing is GRANTED.          We withdraw our

opinion of August 4, 1993, and substitute the following.

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

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

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

extreme and outrageous sexual harassment by her supervisor, Chuck

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

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

intentional infliction of emotional distress and violations of

Title VII2 and the Texas Commission on Human Rights Act3 ("article


      1
      The district court dismissed the claims against Mr. Baugh
at trial because Mrs. Prunty had failed to serve Baugh with her
complaint.
      2
       42 U.S.C. § 2000e et seq.
      3
      TEX.REV.CIV.STAT.ANN. art. 5221k (Vernon 1987 and Vernon
Supp.1992).

                                    1
5221k").          Although the district court found that Mrs. Prunty had

suffered severe emotional distress at the hands of Mr. Baugh, it

held       that    AFI   was   not   liable       for   the   damages    which    flowed

therefrom.         The court also found that AFI was responsible for the

sexual harassment of Mrs. Prunty, having violated Title VII.

However, the court held that neither Title VII nor article 5221k

authorized the type of relief which Mrs. Prunty sought.                        We affirm

in part and reverse and remand in part.

                          I. Facts and Procedural History

       Arkansas Freightways, Inc. is a trucking company which has

numerous terminals throughout several states, including Texas.                          In

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

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

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

operation.          Among other things, she interviewed applicants for

truck-driver positions, made recommendations as to which applicants

should be hired, dispatched drivers, ensured that the trucks were

maintained,         performed    administrative         functions,      took    care    of

customer service, and, if necessary, drove trucks.                        On July 13,

1987, AFI promoted Mrs. Prunty to operations supervisor and made

her a salaried employee.

       From       the    beginning   of   her      employment    until    as     late   as

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

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


       4
      Mr. Smart worked out of the Sherman terminal and visited
the Paris terminal just once per week.

                                              2
AFI hired Chuck Baugh as the terminal manager for the Paris

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

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

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

drivers and dock workers.

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

supervisor, Mr. O.D. Rippy. Mr. Rippy, the vice president of AFI's

southwestern operations, worked in the Dallas office.     Mrs. Prunty

telephoned   Mr.   Rippy    several   times   to    discuss   Baugh's

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

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

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

also telephoned Mr. Rippy to inform him of the abuse which Mrs.

Prunty was experiencing.    Mr. Prunty told Rippy about the remarks

and gestures which Mr. Baugh had made to and about Mrs. Prunty and

asked him to put an end to the situation.          However, Mr. Rippy

informed the Pruntys that Mr. Baugh and Mrs. Prunty would have to

work out the problems themselves.

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

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

this letter, she stated that Mr. Baugh had made rude and obscene

comments to her and about her.    As a result of this letter, Mr.

Rippy, the vice president who had previously ignored Mr. and Mrs.

Prunty's pleas for help, was ordered to investigate the Paris

     5
      Mr. Rippy denies receiving this letter; however, the
district court found that Mr. Rippy was aware of Mr. Baugh's
conduct. AFI has not challenged this finding.

                                  3
office    to     determine     whether   Mrs.    Prunty's      allegations   were

meritorious.       Rippy then determined that the allegations were,

indeed, legitimate.           He had the workers at the Paris terminal to

write down the types of statements which Baugh had made about

Prunty.    Mr. Rippy then faxed those statements to AFI's office in

Arkansas.      Chuck Baugh was promptly dismissed.

     Because Rippy faxed the statements, additional AFI employees

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

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

Arkansas employees who read the statements.               Mrs. Prunty testified

that when she learned that Scott Harris knew about the obscenities

uttered about her, she felt so humiliated and degraded that she

could no longer work with or for him.                 Prunty therefore resigned

her position as operations supervisor6 and found employment in

Dallas with the United States Postal Service.

     Prunty brought this cause of action in Texas state court, and

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

court    found    that    Baugh's   conduct     was    intentional,   offensive,

extreme, and outrageous;            the court further held that Baugh's

conduct    created       an   abusive,   hostile,       and   offensive   working

environment.      The court decided that the sexual harassment was so


     6
      She stated that she also resigned because she had not been
promoted to the terminal manager position after AFI fired Baugh.
However, the district court found that she never applied for the
position, that she did not inform her superior officers that she
was interested in the position, and that she was not qualified
for the position. There was also evidence that Mrs. Prunty had
informed her fellow workers that she would resign regardless of
whether AFI offered her the terminal manager position.

                                         4
pervasive that AFI was charged with constructive knowledge thereof.

Further, finding         that     Mr.   Rippy      actually   knew    of    the   sexual

harassment, the court found that Rippy had done nothing to remedy

the   problem      prior     to   April   1989—when        Prunty    contacted    AFI's

president.7       The district court also determined that Mrs. Prunty

had, indeed, suffered severe emotional distress as a result of

Baugh's conduct and that Prunty had successfully established a

Title VII claim against AFI.

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

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

could     not    be   held   liable     for       the   intentional    infliction    of

emotional distress because the court determined that Baugh had not

acted within the course and scope of his employment.8                      Finally, the

court denied Mrs. Prunty's requests for compensatory and punitive

damages under Title VII and article 5221k because it concluded that

      7
        The court specifically determined:

                11. Plaintiff complained to Mr. Baugh's supervisor,
                O.D. Rippy, about the working conditions at the Paris,
                Texas[,] terminal on several occasions. Mr. Rippy was
                the Southwest Region Vice-President for defendant.
                Based on the credible evidence, the Court finds that
                Mr. Rippy was aware of the sexual harassment of
                plaintiff by Mr. Baugh.

                12. Prior to April 1989, Mr. Rippy took no action to
                remedy the situation at the Paris Terminal.

                13. In April 1989, plaintiff contacted defendant's
                president, Seridan [sic] Garrison, concerning the
                problems at the Paris Terminal.
      8
      Mrs. Prunty challenges this finding as clearly erroneous.
However, this Court's disposition of the other issues in this
case relieves us of the necessity of reviewing that factual
finding.

                                              5
such damages could not be recovered under those provisions.

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

conclusions that Title VII and article 5221k disallow the recovery

of compensatory and punitive damages.            She also challenges the

district court's holding that AFI could be liable for Baugh's

actions only if Baugh acted within the course and scope of his

employment.

                               II. Discussion

A. Title VII and Article 5221k Damages

     Mrs. Prunty sought damages for the differences in wages and

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

Service.      She also sought damages for the travel expenses she

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

however, determined that Mrs. Prunty presented no evidence of wage

or benefit differentials.9        The court further decided that Title

VII and article 5221k do not authorize the grant of compensatory

and punitive damages under their provisions.          The district court's

interpretation of those statutes was a legal conclusion which this

Court would usually review de novo.             Palmco Corp. v. American

Airlines, Inc., 983 F.2d 681, 684 (5th Cir.1993).            However, we need

not address the propriety of the district judge's conclusions, for

our review of the record reveals that Mrs. Prunty did not present

any evidence of damages whatsoever.

         It   is   truistic,   indeed   elementary,   that    one   who   seeks

compensatory damages must present evidence of those damages.                DAN

     9
      Mrs. Prunty has not questioned this finding.

                                        6
B. DOBBS, REMEDIES § 3.2, at 140 (1973).    Hence, when one of the prima

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

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

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

the monetary relief requested.      Thus, in this case, Mrs. Prunty's

failure to prove damages precluded her recovery of those damages,

regardless of whether Title VII and/or article 5221k authorized the

type of damages she requested.10        We therefore affirm the district

court's denial of the requested relief under Title VII and article

5221k, albeit for reasons other than those given by the district

court.

B. Ratification

          The district court concluded that an employer can be held

liable for the intentional torts of its employee only when the

employee acts within the course and scope of his employment and

when the act furthers the object for which the employee was hired.

This legal conclusion is subject to de novo review.        Palmco Corp.,

983 F.2d at 684.

      A review of Texas law reveals quite readily that the district

court erred in its legal conclusion. The law has been well-settled

in Texas for well over a century that if an employer or a manager




     10
      At oral argument before this Court, counsel for Mrs.
Prunty asserted that she had introduced evidence that Mrs.
Prunty's post office job required her to drive to and from Dallas
daily. However, proving that damages exist is only one component
of proving damages. Claimants must also prove the amount of
those damages. This, Mrs. Prunty failed to do.

                                    7
for an employer ratifies11 or approves the intentional, malicious,

or grossly negligent acts of an agent, the employer may be liable,

not only for compensatory damages, but also for exemplary damages.12

     11
      The ratification question is properly before this Court.
Indeed, counsel for AFI acknowledged during his oral argument
before this panel that Prunty had proffered the ratification
issue before the district court during the trial. Prunty
likewise properly raised the ratification issue before this
Court: During oral arguments she averred that AFI had ratified
Chuck Baugh's actions. More importantly, under the section of
her brief entitled "Arkansas Freightways is liable for the
actions of Chuck Baugh for the intentional infliction of
emotional distress upon Mildred Prunty," she explained that Rippy
knew of the sexual harassment but did nothing to stop it. Such a
failure to repudiate the egregious acts of Baugh is, by
definition, ratification. Hence, the ratification ball has never
been hidden from any participant in this litigation—not the
parties, not the district court, nor the members of this Court.
     12
      If the employer's liability is based upon respondeat
superior grounds, then the employee must have acted within the
scope of his employment. Country Roads, Inc. v. Witt, 737 S.W.2d
362, 364 (Tex.App.—Houston [14th Dist.] 1987). However, the
Texas Supreme Court made clear in Ft. Worth Elevators Co. v.
Russell that ratification is not based upon respondeat superior
principles. Ratification is based upon the wrongdoing of the
employer—the employer's ratification of the intentional or
grossly negligent acts of its agents. 123 Tex. 128, 70 S.W.2d
397, 402-03, 406 (1934).

          Outside the respondeat superior realm, the scope of
     employment requirement arises only in one context. An
     employer may be held liable for exemplary damages for the
     malicious or grossly negligent acts of its manager only if
     that manager acted within the scope of his or her
     employment. No scope of employment requirement exists in
     other non-respondeat superior situations. Hence, Texas
     courts have repeatedly and consistently held that an
     employer is liable for exemplary damages because of the
     willful acts of its agents if, but only if:

          (a) the principal authorized the doing and the manner
          of the act, or

          (b) the agent was unfit and the principal was reckless
          in employing him, or

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

                                 8
Purvis, 595 S.W.2d at 104;       King, 234 S.W.2d at 404;        Ft. Worth

Elevators Co., 70 S.W.2d at 404-06;         Gulf, Colorado and Santa Fe

Ry. Co. v. Reed, 80 Tex. 362, 15 S.W. 1105, 1107 (1891);              Hays v.

Houston and Great Northern R.R. Co., 46 Tex. 272 (1876);             Shearson

Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 925 (Tex.App.—Corpus

Christi 1991, writ dism'd w.o.j.);        Al Parker Buick Co. v. Touchy,

788 S.W.2d 129, 130 (Tex.App.—Houston [1st Dist.] 1990);                Group

Hospital   Services,   Inc.      v.   Daniel,   704     S.W.2d   870,    877

(Tex.App.—Corpus Christi 1985);           see also Hitt v. East Texas

Theatres, Inc., 203 S.W.2d 963, 969 (Tex.Civ.App.—Texarkana 1947)

(Finding that the employee had not acted within the scope of his

employment, the court then turned to the question of whether the

employer had ratified the employee's acts).

      Very few Texas appellate courts have discussed ratification in

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

have decided that ratification may occur when the employer or its

vice-principal confirms, adopts, or fails to repudiate the acts of

its   employee.    Hinote   v.    Oil,    Chemical    and   Atomic   Workers

International Union, AFL-CIO, Local 4-23, 777 S.W.2d 134, 141

(Tex.App.—San Antonio 1989, writ denied);             K-Mart No. 4195 v.

Judge, 515 S.W.2d 148, 153, 154 (Tex.Civ.App.—Beaumont 1974, writ


           was acting in the scope of employment, or

           (d) the employer or a manager of the employer ratified
           or approved of the act.

      Purvis v. Prattco, Inc., 595 S.W.2d 103, 104 (Tex.1980)
      (quoting King v. McGuff, 143 Tex. 432, 234 S.W.2d 403, 404
      (1950) (emphasis added)); see also Ft. Worth Elevators Co.
      v. Russell, 123 Tex. 128, 70 S.W.2d 397, 404-06 (1934).

                                      9
dism'd w.o.j.).        The San Antonio Court of Appeals accepted a trial

court's definition of ratification in Hinote:

       "RATIFICATION" means the adoption, confirmation or failure to
       repudiate prior unlawful acts which were not legally binding
       at a time when the [defendant] had the right and knowledge of
       facts necessary to repudiate such conduct;     but which, by
       ratification or by the failure to repudiate, become the acts
       of the defendant.

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

Judge that since the defendant company's manager had not repudiated

the    intentional,     tortious    acts   his    employees,   the     defendant

company, as a matter of law, had ratified the acts.                  Judge, 515

S.W.2d at 153, 154.

        Additionally, the Texas Supreme Court has determined that in

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

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

1107;       International and Great Northern R.R. Co. v. McDonald, 75

Tex. 41, 12 S.W. 860, 862 (1889).          When the company 1) knows about

the employee's acts, 2) recognizes that the employee's acts will

continue if he is retained, 3) does nothing to prevent the ongoing

tortious acts, and 4) chooses to retain the employee, the company

ratifies the tortious acts and may be held liable for exemplary

damages.      See Reed, 15 S.W. at 1107;         McDonald, 12 S.W. at 862.

        In this case, the district court found that Mr. Rippy, the

vice president of AFI's southwestern region—a vice principal of the

corporation13—knew about Baugh's harassment of Prunty and took no

       13
      Because Mr. Rippy is a corporate officer and because he
has the authority to direct, supervise, hire, and discharge
subordinates, he is a vice principal whose acts may subject AFI
to liability for exemplary damages. Ft. Worth Elevators Co., 70

                                      10
action to end the harassment.         Until Mrs. Prunty contacted AFI's

president, Mr. Garrison, Rippy did absolutely nothing about the

sexual harassment.       Indeed, Mr. Rippy only investigated Prunty's

allegations after he was ordered to do so by a superior officer.

      In regard to ratification, of course, it is evident that

before one can ratify an act so that it becomes his own, he must

know of the act with which he is charged.          In Wilson v. Monarch

Paper Co., we observed that "although [the employer's] conduct

often rises to the level of illegality, except in the most unusual

cases it is not the sort of conduct, as deplorable as it may

sometimes be, that constitutes "extreme and outrageous' conduct."

939 F.2d 1138, 1143 (5th Cir.1991).        In other words, even though

conduct may violate Title VII as sexual harassment, it does not

necessarily become intentional infliction of emotional distress

under Texas law.    Only in the most unusual cases does the conduct

move out of the "realm of an ordinary employment dispute," Dean v.

Ford Motor Credit Co., 885 F.2d 300, 307 (5th Cir.1989), into the

classification of "extreme and outrageous," as required for the

tort of intentional infliction of emotional distress.        See Wilson,

939 F.2d at 1145.

       No   one    can    seriously    doubt—and   the   district   court

specifically found—that "Mr. Baugh's sexual harassment of [Mrs.




S.W.2d at 406; Southwestern Bell Telephone Co. v. Reeves, 578
S.W.2d 795, 800 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ
ref'd n.r.e.).

                                      11
Prunty] was extreme and outrageous."14     (Emphasis added.)      However,

if Mr. Rippy were made aware only of "an ordinary employment

dispute,"   he   plainly,   under   the   authority   of   this    Court's

precedent, did not have sufficient knowledge to ratify Mr. Baugh's

"extreme and outrageous" tortious conduct so as to expose AFI to

liability for the tort of intentional infliction of emotional

distress.

     This Court must look, then, to the district court's findings

     14
      The district court found, and AFI concedes, that Baugh's
conduct and statements were extreme and outrageous. Mrs. Prunty
and other workers testified about some of the things which Mr.
Baugh did: Among other things, he often told Mrs. Prunty and the
other workers about sexually explicit dreams he had of Mrs.
Prunty. On at least one occasion, Baugh told Prunty that he had
seen a nude picture of her in a magazine. He claimed that the
woman in the picture was hanging from a tree with her legs over
the tree limb so as to expose and display her pudendum.

          Baugh also described how he thought Mrs. Prunty's
     sexual organs looked in extremely graphic and vulgar ways.
     He told the truck drivers and dock workers that "[Prunty's]
     pussy probably looks like she was hit between the legs with
     a double axe" and that "she would have to have a two-by-four
     to keep herself from falling in." Additionally, he
     constantly accused Mrs. Prunty of engaging in sexual acts
     with another worker. One witness testified that Baugh was
     "always" saying that "Jerry is fucking [Prunty] up here
     while we're gone [from the office]." Further, Chuck Baugh
     brought obscene items, including a crocheted replication of
     a man's genitalia, to work to show them to Mrs. Prunty and
     to the other workers. He also talked to Prunty, over her
     protestations, about the sexual acts of animals. Once, he
     even touched Mrs. Prunty's breast.

          All of the witnesses who had worked in the Paris
     terminal acknowledged that these types of comments and
     activities occurred on a day-to-day basis. Although the
     other employees were all men, they testified that they were
     offended by Baugh's conduct. Further, each felt that the
     comments were extremely degrading to Mrs. Prunty. In fact,
     one of AFI's employees testified that he believed that Mr.
     Baugh's conduct had placed Mrs. Prunty on the brink of a
     nervous breakdown.

                                    12
of fact and conclusions of law to determine whether Mr. Rippy's

knowledge   reached   the   level   required   for   ratification.   The

district court found, inter alia, the following:

          ... Mr. Baugh subjected plaintiff directly and indirectly
     to sexual comments and innuendo.      This conduct continued
     during the entire time Mr. Baugh was terminal manager.
     Plaintiff complained to Mr. Baugh's supervisor, O.D. Rippy,
     about the working conditions ... on several occasions....
     [T]he Court finds that Mr. Rippy was aware of the sexual
     harassment of plaintiff by Mr. Baugh.... Mr. Rippy took no
     action to remedy the situation....      [P]laintiff contacted
     defendant's president ... concerning the problems at the Paris
     Terminal.     Mr. Baugh's actions toward plaintiff were
     offensive, unwelcome, and constituted sexual harassment. This
     harassment altered the conditions of plaintiff's employment
     with defendant and created an abusive, hostile, and offensive
     working environment....      Mr. Baugh's harassment was so
     pervasive that defendant is charged with constructive
     knowledge of such harassment....         Mr. Baugh's sexual
     harassment of plaintiff was intentional and reckless, was
     extreme and outrageous [and] caused plaintiff severe emotional
     distress....

            ....

          In order to establish a claim for intentional infliction
     of emotional distress, the plaintiff must prove: ... (2) that
     the conduct was extreme and outrageous;      ... and (4) the
     emotional distress suffered by the plaintiff was severe. Dean
     v. Ford Motor Credit Co..... Mr. Baugh's actions amounted to
     an intentional infliction of emotional distress upon
     plaintiff.

     Although the district court's findings could have been more

specific, this Court reads that court's findings as a determination

that Mr. Rippy not only knew of the sexual harassment, but also

knew enough about the harassment to realize that Chuck Baugh's

conduct was extreme and outrageous.15          Although there is some

     15
      The district court's listing of the factors from Dean
evinces its awareness that the additional findings—beyond those
necessary for a Title VII claim—were required to establish the
tort. It is undoubtedly for this reason that the court
specifically found not only that Mr. Rippy was aware of the

                                    13
dispute as to precisely what details were communicated to Mr.

Rippy, it was not clearly erroneous for the district court to so

find,   particularly   in   view    of    the   pervasive   and    day-to-day

recurrence of Mr. Baugh's statements and actions.

     Applying these facts to Texas' definition of ratification

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

distress upon Mrs. Prunty.         We therefore hold that the district

court, while not clearly erring in its findings of fact, erred in

its conclusion of law by denying Mrs. Prunty damages based upon her

claim of intentional infliction of emotional distress.

                            III. Conclusion

     Because Mrs. Prunty failed to introduce evidence of her

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

and article   5221k    issues.      Clearly     without   such    evidence   of

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

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

     As to the intentional infliction of emotional distress claim,

however, the district court failed to apply the facts which he

found—Rippy knew of the sexual harassment but failed to remedy the

situation—to applicable Texas law. Such was error. Applying those

facts to Texas law compels the conclusion that Mr. Rippy ratified

Baugh's actions, thereby subjecting AFI to liability for actual and

exemplary damages.     This Court must therefore REVERSE and REMAND

the intentional infliction of emotional distress claim to the


sexual harassment, but also that the sexual harassment was
"extreme and outrageous [and] caused plaintiff severe emotional
distress."

                                     14
district court for the assessment of damages.

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

     The majority imposes liability based on its holding that

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

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

distress upon Mrs. Prunty."1     However, Mrs. Prunty did not plead

ratification.2     Because     her        pleadings   did   not    encompass

     1
      I join the majority in their revulsion of Chuck Baugh's
conduct, which was more than adequately proven below. My
disagreement with the majority opinion lies in the method by
which it imposes liability; that is, by changing Mrs. Prunty's
only viable appellate argument—course and scope of employment—to
an appellate point that she did not contend—ratification. See
maj. op. slip opinion at 3169 n. 8 (acknowledging that Mrs.
Prunty challenges the district court's finding that Mr. Baugh had
not acted within the course and scope of employment, but
disposing of the case on other issues).
     2
      Mrs. Prunty's claim that Arkansas should have investigated
and determined the cause of the problems between her and Mr.
Baugh is the closest that Prunty comes to making a ratification
argument. See Record on Appeal, vol. 1, at 5 (Plaintiff's
Original Petition) ("Arkansas Freight Way failed to take any
corrective action after they were notified of the Plaintiff's
complaint."); Brief for Prunty at 19 (Prunty "made repeated
complaints as to Chuck Baugh's [conduct] but Arkansas turned a
deaf ear.... [A]ny reasonable employer would investigate to
determine what is the cause of the problems."). Prunty's
contention that Arkansas breached its duty to investigate her
complaints is better characterized as a claim of negligence,
rather than ratification. "Ratification" is

          the adoption, confirmation or failure to repudiate
          prior unlawful acts which were not legally binding at a
          time when the [defendant] had the right and knowledge
          of facts necessary to repudiate such conduct; but
          which, by ratification or by the failure to repudiate,
          become the acts of the defendant.

     Maj. op. slip opinion at 3171. "Actionable Negligence" is
     defined as "[t]he breach or nonperformance of a legal duty,
     through neglect or carelessness, resulting in damage or
     injury to another. It is failure of duty, omission of

                                     15
ratification, Mrs. Prunty did not intend to, nor did she, prove

ratification.3   She did not argue ratification to the district


     something which ought to have been done, or which reasonable
     man, guided by considerations which ordinarily regulate
     conduct of human affairs, would or would not do." Black's
     Law Dictionary 29 (6th ed. 1990). By requiring knowledge of
     facts necessary to repudiate unlawful conduct, ratification
     requires a higher standard of proof than actionable
     negligence. The record clearly demonstrates that Mrs.
     Prunty never argued that Mr. Rippy knew of facts about Mr.
     Baugh's unlawful conduct necessary to repudiate such
     conduct, but only that Mr. Rippy had enough information to
     conduct an investigation. See infra notes 3 & 4.
     3
      The record clearly shows that Mr. Rippy did not know about
the extreme and outrageous nature of Mr. Baugh's conduct. For
example, compare the generalities contained in Mrs. Prunty's
letter to Mr. Rippy (Oct. 21, 1988) with the specifics in her
letter to Sheridan Garrison (Apr. 25, 1989). In her October 21
letter, Mrs. Prunty stated:

               I know you are a busy man and the problems you
          face each day are tremendous but the situation here at
          Paris has come to be a real problem. As you know in
          the past we have had a few problems but we were able to
          pull together and work things out. I was all excited
          about the growth and expansion at our terminal and
          welcomed Chuck Baugh aboard as Terminal Manager with
          great expectations. Chuck came across to us all as a
          leader and with all the experience and abilities it
          takes to be one.

               It wasn't 48 hours later and we had a problem and
          it's become a bigger one every [sic] since. I have
          been trying to work with Chuck on many things and I
          want to work with Chuck but I want him to have as much
          respect for me as I have shown for him.

               He has made sarcastic remarks as to why he was
          hired as Terminal Manager saying "If you had been doing
          your job they wouldn't have had to hire me." He also
          has said "As a "woman' I would like to see you make it
          in this business as a [sic] Operations Supervisor." I
          use [sic] to feel secure in my job with Arkansas
          Freightways but Chuck has threatened my job on several
          occasions in the last five weeks.

               Our relationship has deteriated [sic] to the point
          where we are unable to peacefully discuss matters. He

                               16
     has an abusive language (not cursing) it is the tone of
     voice he uses. I have been trying to do as you ask me
     to and do what ever he asks me to do but things are not
     working out as well as expected.

          His attitude toward his job is effecting [sic]
     each and everyone of us negatively at Paris.

          Please help!

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

          I am reluctant to write you concerning the
     problems I am having with the local Terminal Manager,
     Chuck Baugh. I sent a letter to Mr. Rippy concerning
     this some months back. I had no reply to this letter
     (copy attached). If something had been said then maybe
     things would not have progressed as they have. Chuck
     has went [sic] beyond the limits of professionalism by
     making rude and obscene comments about me personally
     and about me and some of the other people that work at
     the local terminal. I have witnesses to this effect.
     He has also told these obscene things about me to
     another member of management at a terminal in our area.

          He is continually putting me down as a woman in
     this profession. I would appreciate your help in
     correcting this situation fore [sic] it has gotten
     totally out of control.

          Customers in the area are also aware of the
     problem we are having and have brought this matter to
     Chucks' [sic] attention on two separate accosions [sic]
     (Hon Furn. and Texas Tag). This problem is spreading
     beyond the confines of this office and I am not
     interested in seeing Arkansas Freightways new reputaion
     [sic] in Texas being destroyed by one persons [sic]
     obviously disturbed actions.

Plaintiff's Exhibit 3.

     Furthermore, and perhaps more importantly, compare the
graphic descriptions of Baugh's conduct, maj. op. slip
opinion at 3172 n. 14, with Mrs. and Mr. Prunty's
testimonies at trial which indicate that Mr. Rippy was never
informed of Mr. Baugh's specific acts.

Mrs. Prunty testified:


                           17
     Questions by Ms. Colson:

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

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

Record on Appeal, vol. 2, at 24.

     Q Within the first week, what sort of discussion did
     you have with Mr. Rippy?

     A Well, I told him that this—you know, that we weren't
     getting along well and that the way he was, you know,
     trying—I believe I told him exactly what he said, that,
     you know, he would like to see me make it as a woman in
     operations supervisor and that we weren't—you know, we
     just weren't clicking together. We couldn't get along.
     Everything was just like, whatever I did, it was wrong.
     He told me we would just have to work our problems out
     between us.

     Q The remarks that you [sic] were making at this time,
     was it out of your job performance or were they more of
     a personal nature?

     A Just seemed like it was just personal to me, because
     I was doing exactly what I had been doing before. I
     could realize that some things, you know, probably need
     to be changed, you know, to improve it a little bit,
     but, you know, no matter how I did it, if I done it the
     way he wanted, that wasn't the way it was supposed to
     have been done.

Id. at 25-26.

     Q Did you ever—after your conversation with Mr. Rippy,
     did you ever contact—first conversation, did you ever
     contact him again?

     A Yes, ma'am. I called Mr. Rippy at home. Me and the
     other drivers got together and we decided if we called
     him and all of us called him that he would do
     something. So after we all got through working that
     night we decided we would call him. We called him from
     work and all of us were there, me and Jerry and Robert
     and Tim, and we decided we would call him at home,
     because that's how important it was.


                           18
          So we called him at home and I told him, you know,
     that we were having problems and we couldn't get things
     worked out and that he was acting in an unprofessional
     manner. And he just told us, you know, that we would
     have to just, you know, work with it, what we—to work
     things out. And I told him, I said: Well, we're
     all—you know, we don't want to quit, you know, meaning
     all of us. And he said: Well, if y'all want to find
     another job, it would be fine with him.

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

     A Yes, ma'am.

     Q What else did you tell him about his behavior?

     A I just, you know, told him that we—the way he would,
     you know, do things, it was just—I didn't see it was a
     correct way to do. It was just—lack of words to put it
     how he was acting.

Id. at 37-38.

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

     A Yes, ma'am.

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

     A Not that I'm aware of.

Id. at 41.

     Q Did your husband ever contact Mr. Rippy?

     A Yes, Ma'am. He called him at home. When he was in
     California he had called me at work and I was upset,
     and somehow or another he got Mr. Rippy's home phone
     number and he called Mr. Rippy at home. I asked him
     not to, but he did.

Id. at 41.

     Questions by Mr. Gilker:

     Q When he came and interviewed you, did you ever tell
     Mr. Rippy about that as part of the problems you had

                          19
     with Arkansas Freightways?

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

     Q When you spoke to Mr. Rippy and he interviewed you on
     4/28/89, did you tell him about this dream incident
     that Mr. Baugh allegedly made?

     A That what?

     Q The dream statement that Mr. Baugh allegedly stated.

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

     Q The day he came up and investigated the problems.

     A I don't recall what was said to Mr. Rippy that day.
     I told him some of the things that day what was said,
     yes. I couldn't say it to him. I believe I wrote it
     down, because I couldn't say it to him.

     Q Had you ever told Mr. Rippy before that day about any
     of these problems that you have testified a minute ago?

     A Not in graphic detail I did not. I just told him
     that he was acting in an unprofessional manner, and
     that's what I said to Mr. Rippy.

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

     A No, sir.

     Q Or did you ever say, "He's wearing a belt buckle that
     I consider offensive" to Mr. Rippy?

     A No, sir.

     Q Did you ever tell him—you said he was acting
     unprofessional. What context did that statement come
     up? Was that the telephone call with you and the other
     three employees were on?

     A I believe so. I called him at home and we was trying
     to make him aware that we were having problems there,
     and he just—if he had just came and talked to us that
     day.

Id. at 61-62.

                          20
     Q And in this phone call, you didn't tell him that—you
     did not tell him about the tie incident or any of the
     inappropriate remarks that he was making to any of the
     employees?

     A No, sir.

     Q The most you said is, what, he is acting
     unprofessional and you complained about how the
     terminal is being run?

     A Yes, sir.

Id. at 63.

     Questions by the Court:

     Q You say that you told Mr. Rippy when you first talked
     to him about a problem in the office that he was acting
     in an unprofessional manner.

     A Yes, sir.

     Q Is that your testimony?

     A Yes, sir.

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

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

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

     A No, sir.

     Q He just said you all needed to get along?

     A Yes, sir.

     Q How many times did you advise Mr. Rippy that he was
     acting in an—I talking about Mr. Baugh—was acting in an
     unprofessional manner, either in writing or orally?

     A I can recall at least three phone calls that I called
     him, two to Dallas and one to his home. And then I
     wrote him the letter and sent it to the Dallas
     terminal.

     Q Were all of those conversations the same with regard

                          21
     to whether or not you discussed how he was acting in an
     unprofessional manner?

     A Yes, sir. I would just say, you know, that things
     weren't working out or, you know, that he's, you know,
     not acting responsibly or unprofessional, and he would
     say the same thing, you know, we just have to work it
     out, you know. That was between me and him and he
     wanted us to get along and for the Paris terminal to
     run, you know, smooth and everything.

     Q He never inquired—

     A No, sir.

     Q —as to what the problem was?

     A No, sir.

     Q On the other hand, you never specifically referred to
     any offensive remarks that may have been made of a
     sexual nature?

     A No, sir.

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

     Questions by Ms. Colson:

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

     Q When was this?

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

Id. at 86.

     Q And I believe you said you were in California?

     A Uh-huh.

     Q And who did you call?

     A Mr. O.D. Rippy.

     Q And what was the nature of your—did you get to talk
     to Mr. Rippy?

     A Yes, I did.

                            22
     Q And did he know who you were?

     A Uh-huh.

     Q And what was the nature of your discussion?

     A Well, I just asked him about Chuck and the stuff that
     they had done, you know, what he had done, the talk and
     all the—

     Q Did you give specific details?

     A No, I didn't go into that.

     Q What did you tell him? Did you talk to him about
     remarks that were being made?

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

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

     A That—just that's all I asked him, could he—could he
     see about doing something about it.

     Q And you did mention about gestures and remarks that
     were being made?

     A Yes, I did.

     Q What was Mr. Rippy's reaction?

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

Id. at 87-88 (emphasis added).

     Questions by Mr. Gilker:

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

     A No, I can't.

     Q Was it before Christmas or after Christmas?

     A I don't remember.

     Q What specifics did you tell Mr. Rippy in this

                           23
     telephone conversation?

     A Well, I just told him Mildred was under a lot of
     stress and that she hadn't been, you know, since Mr.
     Baugh had come. They just weren't getting along and
     all the remarks and stuff.

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

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

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

     A I just said the things he was saying about her that
     those drivers had told me and that she had told me.

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

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

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

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

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

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

     Q You didn't say, "He's saying gross things about my
     wife,' or anything like that?

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

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

     A Yeah.

Id. at 91-93 (emphasis added).

     Questions by the Court:

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


                           24
     A Yes, sir.

     Q That she had problems with Mr. Baugh?

     A Uh-huh.

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

     A I just asked—what I asked him—that's all I said about
     the problems. I just asked him could he see about it,
     and he told me that was—they would have to work that
     out.

     Q Well, you testified earlier you said something about
     remarks. Did you say anything to him about remarks or
     not?

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

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

     A I didn't go into any detail about the remarks, about
     what he said. I just said that what he had been
     saying. I just said they had problems.

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

     A Not exactly.

     Q Well, can you tell me what—is all you said is that
     they were having problems?

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

     Q That's what you told him?

     A Yes, sir.

Id. at 93-94 (emphasis added).

     Mr. Rippy was never told about Mr. Baugh's dream,
picture, tie, belt buckle, and specific remarks, nor was he
told about the incident when Mr. Baugh unzipped his trousers
to adjust his shirt. See Record on Appeal, vol. 2, at 73-75
(Mrs. Prunty's testimony), 93-94 (Mr. Prunty's testimony).
Moreover, the cases cited by the majority opinion—Judge,
Reed, and McDonald—are distinguishable because all three

                          25
court.4   See United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th

Cir.1990) ("We have stated that issues raised for the first time on

appeal "are not reviewable by this court unless they involve purely

legal questions and failure to consider them would result in


     involved situations where the employer knew about the
     specific unlawful conduct.
     4
      Prunty only argued that Freightways had a duty to
investigate her complaints that she and Baugh were having
problems, and does not contend that Arkansas knew facts necessary
for it to repudiate Mr. Baugh's unlawful acts. Ms. Colson stated
in final argument:

                I think in this case the testimony has shown that
           she notified them, she put them on notice that she was
           having problems. These weren't just adjustment
           problems. She wrote him a letter, she called him, her
           husband called him. She finally wrote a letter to the
           president of the company.

                Ms. Prunty is a person who was reluctant to go
           into graphic details, and probably most women would
           be—or persons would be reluctant to go into graphic
           detail. I think they had enough information and they
           were put on enough notice to be aware of what was going
           on, and they should have investigated it. And they did
           not investigate it and did not believe her complaint.
           They refused to go and do that, and I think they were
           under a duty to do that and they should have done so,
           but they did not do so.

     Id. at 193; see also Record on Appeal, vol. 1, at 52
     (Plaintiff's Brief as to Damages Pursuant to State Cause of
     Action) (arguing that Arkansas should be held liable for
     damages for intentional infliction of emotional distress
     because Mr. Baugh was employed in a managerial capacity and
     was acting within the course and scope of employment, and
     because the act furthered the object for which Mr. Baugh was
     hired); Id. at 66-69, 71-72 (Plaintiff's Post Trial Brief)
     (same).

          Furthermore, there is no indication in the record that
     Mrs. Prunty simply mislabeled her theory of recovery. Most
     telling is the fact that none of the cases cited by or the
     arguments set forth by the majority in Part II.B. are
     contained in any briefs filed by the parties on appeal or
     contained in the record or referred to in the trial below.

                                 26
manifest injustice.' " (citations omitted)).   The district court

did not find ratification.5   Nor did she preserve this issue on

    5
      The majority's logic in "finding" ratification is curious
indeed. The majority initially states the issue before this
Court as follows: "The district court concluded that any
employer can be held liable for the intentional torts of its
employee only when the employee acts within the course and scope
of his employment and when the act furthers the object for which
the employee was hired." Maj. op. slip opinion at 3170 (emphasis
added). However, the record reflects that the district court did
not find "that any employer can be held liable for the
intentional torts of its employee only when the employee acts
within the course and scope of his employment and when the act
furthers the object for which the employee was hired." See
Record on Appeal, vol. 1, at 83 (Conclusions of Law, 17-20).
Furthermore, Mrs. Prunty does not, as the majority states,
"challenge[ ] ... that AFI could be liable for Baugh's actions
only if Baugh acted within the course and scope of employment."
Maj. op. slip opinion at 3169 (emphasis added). From this
"straw" issue the majority can then "readily" conclude "that the
district court erred in its legal conclusion," finding that
ratification, an issue not before the district court, is also a
basis for liability. Maj. op. slip opinion at 3173-74.

         Second, in holding that Arkansas ratified Mr. Baugh's
    conduct, the majority bases its conclusion on the district
    court's finding that "Mr. Rippy ... knew about Mr. Baugh's
    harassment of Prunty and took no action to end the
    harassment." Maj. op. at 3172. However, as the majority
    correctly points out: "[E]ven though conduct may violate
    Title VII as sexual harassment, it does not necessarily
    become intentional infliction of emotional distress under
    Texas law. Only in the most unusual cases does the conduct
    move out of the "realm of an ordinary employment dispute,'
    [and] into the classification of "extreme and outrageous,'
    as required for the tort of intentional infliction of
    emotional distress." Maj. op. slip opinion at 3172
    (citation omitted). The district court did not find either
    "that Mr. Rippy ... knew ... that Chuck Baugh's conduct was
    extreme and outrageous," or "that Mr. Rippy ... knew enough
    about the harassment to realize that Chuck Baugh's conduct
    was extreme and outrageous." Maj. op. slip opinion at 3173;
    see Record on Appeal, vol. 1, at 83 (Conclusions of Law, 17-
    20). The district court did find, however: "17. Mr.
    Baugh's actions amounted to an intentional infliction of
    emotional distress upon the plaintiff. 18. An employer is
    liable for the actions of any employee when the act is
    within the employee's general authority and when the act
    furthers the object for which the employee was hired. 19.

                               27
appeal.6   See Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.1990)


     Mr. Baugh's actions against plaintiff were not in
     furtherance of any object of defendant; therefore,
     plaintiff cannot recover from defendant for emotional
     distress. 20. All costs are to be paid by defendant." Id.
     (citation omitted). The district court made the necessary
     findings on the only vicarious liability issue presented to
     the Court by Mrs. Prunty for determination: "course and
     scope of employment." Inversely, the district court made no
     finding on any other liability issue sounding in tort,
     including ratification.

          Third, since the district court did not find
     ratification, the majority must supply this missing link in
     the manner it "reads [the] court's findings." Maj. op. slip
     opinion at 3173. The majority, not the district court,
     finds (reads) that "Mr. Rippy ... knew enough about the
     harassment to realize that Chuck Baugh's conduct was extreme
     and outrageous." Maj. op. slip opinion at 3173. For the
     panel majority, therefore, "constructive knowledge" is
     sufficient, contrary to its own statement of Texas law, to
     establish ratification as a matter of law. See maj. op. at
     3172 ("In regard to ratification, of course, it is evident
     that before one can ratify an act so that it becomes his
     own, he must know of the act with which he is charged.").
     6
      See Brief for Prunty at 11 (In her statement of issues
presented on appeal, Mrs. Prunty stated: "Arkansas Freightways
is also liable for Chuck Baugh's actions in his intentional
infliction of emotional distress of Mildred Prunty in that his
actions were in furtherance of his employer's business for which
he was hired and that was the supervision of employees in the
Paris terminal."), 18-19. The majority indicates that "the
ratification question is properly before this Court" because (1)
AFI acknowledged that Prunty had proffered the issue before the
district court; (2) Prunty raised the issue during oral
arguments; and (3) Prunty explained in her brief that Rippy knew
of the sexual harassment but did nothing to stop it. See maj.
op. slip opinion at 3170 n. 11. None of these reasons forms a
basis for appellate review. First, this Court brought up the
issue of ratification—not Mrs. Prunty. Second, although counsel
for AFI stated during oral argument that Mrs. Prunty raised the
issue of ratification before the district court, he also stated
during oral argument that "[t]hat issue [—ratification—] was
never raised by [Mrs. Prunty] in her pleadings." Third, the
record clearly indicates that ratification was not an issue
before the district court. See supra nn. 2-5. Fourth, an
isolated statement in Mrs. Prunty's brief stating that Rippy knew
of the sexual harassment is insufficient to preserve this point
on appeal. See Fed.R.App.P. 28(a).

                                28
(Stating    that   appellant    abandoned    issue   on   appeal,   because

"Fed.R.App.Proc. 28(a)[ (5) ] requires that the appellant's [brief]

contain    the   reasons   he   deserves    the   requested   relief   "with

citations to the authorities, statutes and parts of the record

relied on.' "), cert. denied, 498 U.S. 966, 111 S.Ct. 427, 112

L.Ed.2d 411 (1990).        Nonetheless, the majority reverses on the

basis of ratification.

     Accordingly, I respectfully dissent from Part II.B. of the

majority opinion.




                                     29
