                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this opinion should not be published and is not precedent except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

harassment.

     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.




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