                                   NO. 07-09-0379-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                DECEMBER 28, 2011
                          _____________________________

                        FOURTH & FRANKFORD SONIC, LTD.,
                            A TEXAS CORPORATION,

                                                                  Appellant
                                             v.

                                   CHELSEA BROWN,

                                                                   Appellee
                          _____________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

     NO. 2007-541,586; HONORABLE RUBEN GONZALES REYES, PRESIDING
                       _____________________________

                               Memorandum Opinion
                          _____________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Chelsea Brown sued her former employer, Fourth & Frankford Sonic, Ltd., and

recovered judgment in her favor.        Her myriad complaints arose from her being

victimized by a co-worker, Eugene Houston, while working.           Only one claim was

submitted to the jury, however, and it consisted of sexual harassment. As previously

mentioned, the jury found in favor of her on that claim. Sonic appeals by asserting that

there was neither legally nor factually sufficient evidence to support the finding. It also
questions whether the amount of attorney’s fees awarded Brown was excessive since

she failed to segregate recoverable fees from unrecoverable ones. Brown appeals and

contends that the trial court should not have directed a verdict on her claim of battery

and should have awarded her more attorney’s fees. We affirm in part, reverse in part

and remand.

                                      Background

      During portions of 2005 and 2006, Brown and Houston were employees of Sonic.

She was a carhop, and he worked primarily as a cook. But, according to the testimony

of a Sonic limited partner, Houston was classified a “manager-in-training,” which was a

position “superior to a carhop.” Furthermore, his duties included accounting for revenue

received by carhops from food sales.       But whatever else they encompassed went

unexplained.

      Brown testified of four workplace occurrences which she contends created a

hostile work environment and, therefore, constituted sexual harassment.          The first

occurred at Sonic in late August or early September 2005, was described as Houston

attempting to “spoon” with Brown. When she asked him not to touch her,

      he said, ‘Well, I’m just being friendly.’ And I said, ‘You don’t have to touch
      me to be friendly.’ And I said, ‘I’m married.’ And he said, ‘Well, I didn’t
      ask you that.’ And that’s it.

Brown immediately reported the occurrence to an assistant manager on duty, Curt

Bluhm.

      The next unwelcomed advance toward Brown arose during an evening shift in

October 2005. According to her testimony, she




                                            2
      . . . was standing there, and Trey--I don’t know his last name, but Trey
      was counting my money, and I felt somebody come up from behind me
      and rub up my neck and went into my hair and went down my back slowly.
      And then I turned and looked, and I seen it was him. And I told him, ‘Quit
      touching me like that.’ And he said--he didn’t say anything, and he just
      walked off.

                                           *   *   *

      Q.     How far down your back did he move his hand?

      A.     He went to the middle of my back.

Furthermore, her “boyfriend,” who was parked outside, witnessed the event. And, as

before, she immediately reported it to the assistant manager on duty, Zane Pogue.

The assistant manager purportedly laughed at the report and said he would talk to

Houston. The following day, a female co-worker laughingly said to Brown that Houston

was in trouble. Moreover, when a male carhop accidentally bumped into her that day,

the assistant manager admonished the male carhop that Brown’s “boyfriend might beat

you up.”

      The next incident happened in November 2005 during an afternoon shift while

Brown was carrying a food tray. She described it as follows:

      I had turned around to take out an order, and when I turned around,
      [Houston] came up behind me and put his arm around my shoulder, and
      he put his hand on my arm. And he said, ‘I’m going to show you how to
      do your job.’ And I looked at him, and I said, ‘You need to go do your job.’
      And he walked me outside, and I said, ‘Get off me.’ And he walked me
      like to two cars. And when I was getting close to the car I was going to, he
      turned back around and went back inside.

      Q.     So he pretended like he was escorting you?

      A.     Yes.

      Q.     Did he have any business trying to tell you how to do your job?

      A.     Not to my knowledge, no, he didn’t.

                                           3
The following day, Brown reported the occurrence to the general manager, Chris

Willson, who agreed to “have a talk” with Houston.

      The final advance by Houston occurred during January 2006. Brown was behind

the fountain standing beside a female co-worker at the time when she:

      . . . bent over. I was talking to [the co-worker] and I had bent over to get
      my drink. And as I bent over, I felt somebody rub their hand down my
      back, you know, all the way to my butt. And I raised up, and he had
      thumped me on my ear. And I said, ‘Why are you touching me like that?’
      And he said--he said, ‘You.’ And I said, ‘What?’ And he said, ‘You were
      the one.’ And then he walked off.

On cross-examination, Brown stated that Houston did not touch her “butt” but merely

rubbed her back “’all the way to my butt.’” The matter was then reported to a different

manager, Mikey Torres, who stated that he would take care of the matter the following

day. Houston allegedly was demoted back to cook, though nothing in his personnel file

reflects it was because of his intimacies with Brown. Nor do his personnel records

reflect that he was ever disciplined for or counseled about his conduct towards Brown

despite two superiors supposedly having addressed the matter with Houston.

      Brown further testified that the environment at Sonic was not good for her and

that she needed to leave. So, she resigned at the end of January 2006.

                                    Sonic’s Issues

      Sonic contends that the evidence was legally and factually insufficient to sustain

the jury’s verdict of sexual harassment and that the attorney’s fees awarded Brown

were excessive. We address each issue in turn.

      Sexual Harassment -- Insufficient Evidence

      First, the applicable standard of review can be found in City of Keller v. Wilson,

168 S.W.3d 802, 809 (Tex. 2005). Applying that standard, we overrule the issue.

                                           4
       Section 21.051 of the Texas Labor Code states, in part, that “[a]n employer

commits an unlawful employment practice if because of . . . sex . . . the employer . . .

discriminates in any other manner against an individual in connection with . . . the terms,

conditions, or privileges of employment.” TEX. LAB. CODE ANN. §21.051 (Vernon 2006).

To recover upon a claim of sexual harassment, one must normally prove 1) he belonged

to a protected class; (2) he was subjected to unwelcome sexual harassment; (3) the

harassment was based on sex; (4) the harassment affected a term, condition, or

privilege of employment; and (5) the employer knew or should have known of the

harassment and failed to take remedial action. City of San Antonio v. Cancel, 261

S.W.3d 778, 784 (Tex. App.–Amarillo 2008, pet. denied); Septimus v. Univ. of Houston,

399 F.3d 601, 611 (5th Cir. 2005). Sonic specifically challenges the sufficiency of

evidence underlying the second, fourth, and fifth elements mentioned above.

       With regard to the second element, the harassment can be of two types, quid pro

quo or hostile work environment. The latter is what Brown complained of at bar. Thus,

she had the burden to prove that her workplace was permeated with discriminatory

intimidation, ridicule, and insult of sufficient severity and pervasiveness so as to create a

hostile or abusive working environment. City of San Antonio v. Cancel, 261 S.W.3d at

785. This standard has both objective and subjective components. That is, it is not

enough that the employee subjectively deem the environment hostile, but so too must

the proverbial “reasonable person” standing in the complainant’s shoes. See id. (stating

that the work environment must be both objectively and subjectively made hostile or

abusive by the discriminatory conduct). And, the totality of the circumstances must be

considered in making this assessment. Id. Those circumstances include whether or not



                                             5
the misconduct was frequent, was severe, consisted of physical threats or humiliation

as opposed to merely offensive utterances, and interfered, unreasonably, with the

employee's work performance. Id. The critical focus lies on the environment created;

so, evidence of the general work atmosphere as well as specific instances of hostility or

abuse are important. Id. citing, Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 473 (Tex.

App.–Austin 2000, pet. denied).

       For example, in Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30 (Tex. App.–Austin

1998, pet. denied), Davis was a Wal-Mart employee who sued it for maintaining a

sexually hostile work environment. Her complaints were directed at her supervisor who

uttered such things as liking to see her climb a ladder in a dress, had her climb ladders

when she wore a dress, commented that she looked good in jeans, poked her ribs,

stood close to her, and grabbed her thighs during two “coaching” sessions. Thereafter,

the supervisor purportedly was demoted and transferred to another Wal-Mart location

where other females began to complain of his harassment. However, nothing in his

personnel file evinced that he was demoted or transferred due to the complaints made

by Davis.   Nor did it contain any type of reprimand based on the harassment or

indication that the transfer or demotion resulted in a reduction of pay or like disciplinary

consequence. Due to her complaints, Davis also began to experience repercussions

such as employees telling her that they should not talk to her because she would

complain about them as well. So too did a rumor spread wherein she was accused of

causing her supervisor to be transferred. All this was coupled with evidence that Wal-

Mart failed to train their employees about sexual harassment and its avoidance. The




                                             6
foregoing circumstances were enough to support the jury’s finding of a sexual

harassment claim due to a hostile workplace. Wal-Mart Stores, Inc. v. Davis, supra.

       The circumstances in Davis liken to those at bar in many respects. Both involved

incidents that were not isolated. Just as those of the co-worker in Davis, Houston

directed his conduct towards both the complainant and other females.1 In both, there

was physical contact constituting more than mere playful demeanor. Patterson (Davis’

supervisor) poked his victim and grabbed her thighs while Houston put his arms around

Brown, placed his body against her back and backside as if spooning, and ran his hand

down her back to her buttocks as she bent over. Brown’s complaints also resulted in

the recipient of her first complaint laughing and his later mocking the seriousness of her

complaint by admonishing other male employees to avoid contact with Brown in order to

avoid being assaulted by her boyfriend.

       With regard to maintaining a harassment free environment, Sonic neglected to

train its employees in the matter. The same was true in Davis. This lack of training

apparently extended to management personnel as well. Indeed, those who owned and

operated the business could not even decide what Sonic’s policy was towards sexual

harassment. At least one such owner (Torres) testified that the company maintained a

“zero tolerance” policy.     It should be noted that this was not true since Houston

remained within the employ of Sonic despite his being supposedly counseled by two of

his bosses.

       Another owner (Wilson) denied the existence of a zero tolerance policy toward

sexual harassment.      Instead, he implied that some extent of harassment would be


       1
        Brown testified that Houston and another male employee commented upon a female employee’s
body and invited the employee to join them after work.

                                               7
tolerated. That the latter’s viewpoint appeared the more accurate was borne out by

such things as 1) Houston remaining employed despite Brown having complained at

least three times to her bosses, 2) management marginalizing Brown’s complaints at

times, 3) Sonic allowing the transgressor to remain in close physical proximity to his

victim, 4) Sonic later informing other prospective employers that Houston was a “good

worker” and 5) Sonic omitting from Houston’s personnel file any reprimand or reference

to his propensity to sexually harass female employees.

       Furthermore, that those employing Houston may have opted to treat Houston

with leniency cannot be attributed to their having some question about the bona fides of

Brown’s complaints. Wilson not only admitted that Houston never denied them but also

acknowledged to management at another Sonic location that Houston had issues

necessitating his monitoring, despite his being considered a “good worker.”

       The comparability between the mindset towards sexual harassment of both Wal-

Mart (as exemplified in Davis) and Sonic can also be illustrated in another way. As

noted by the Davis panel, Wal-Mart’s management avoided characterizing Patterson’s

conduct as sexual harassment. The same can be said here. Wilson conceded that

Houston’s conduct was inappropriate, “not okay,” and not an example of “how the store

should be run.” But, when asked if such things as placing his chest and pelvis against

the buttocks and back of a woman (as occurs in “spooning”) over the objection of the

woman or running his hand down her back to her buttocks as she was bent over had

any sexual connotation, Wilson vacillated. It could or could not be in his view, even if

such conduct was directed towards his wife or daughter. Much would depend upon

whether it was “just goofy behavior,” or “a total stranger” did it, or “a friend.” But it was



                                             8
not “overtly sexual” in his estimation, though he ultimately conceded that he could “see

where it’s not welcomed.”

      Yet, misconduct need not be “overtly” sexual to give rise to a prohibited

environment. It is quite conceivable that less than “overt” sexual conduct may also be

indicia of a hostile workplace. See Wal-Mart Stores, Inc. v. Davis, supra (wherein the

court cited evidence of spanking a female employee and “wiggling” while sitting atop the

lap of another as inappropriate conduct). And, Wilson’s apparent willingness to permit

an environment comprised of “unwelcomed” advances or inappropriate behavior to exist

so long as the conduct was not “overtly sexual” and the culprit is a “good worker” tends

to illustrate a misunderstanding of what is acceptable and what is not. Despite Wilson’s

suggestion to the contrary, a wife, daughter, or female employee need not be required

to suffer less than “overt” sexual misconduct simply because it is performed by a “friend”

or someone other than a “total stranger.”

      Admittedly, there is no bright line to be applied in gauging when inappropriate

behavior at the workplace becomes actionable. Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d

456, 463-64 (Tex. App.–Austin 2000, pet. denied) (evidence supported hostile-work-

environment claim where, within two-month period, supervisor repeatedly called

employee at home in evenings to inquire whether she and boyfriend were going out,

later promised to put her up in an apartment if she broke up with her boyfriend,

complimented her body and legs and caressed her leg from her knees to her ankle

during a one-on-one back-room meeting where supervisor seated them face-to-face at

close proximity, was “’always hovering around’” her and “following her,” gave her a

“’very forceful’” “’body-to-body’” hug lasting “several seconds,” and caressed her leg



                                            9
again during another one-on-one back-room meeting during which he complimented her

appearance and encouraged her to break up with her boyfriend); Wal-Mart Stores, Inc.

v. Davis, supra.    Nonetheless, it must be remembered that the prohibition against

sexual harassment serves to provide a remedy when the objectionable conduct rises to

a level so extreme and abusive that it deprives the victim of equal opportunity in the

workplace. Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 222-24 (Tex. App.–

Austin 2010, no pet.). And, we find it difficult to hold that such equal opportunity in the

workplace exists when females are compelled to endure sexually charged behavior to

which males are not exposed.

      It must be remembered that Houston directed his comments and conduct toward

women, not men. He did not run his fingers down a man’s back to his buttocks while

the man was bent over. He did not offer to help a male do his job by hugging the male

around the waist.    He did not invite men to his abode because of their physical

appearance. His conduct was based on gender and had rather clear sexual overtones

irrespective of what one business owner thought.

      And, when the victim of Houston’s multiple and unwanted advances was made

known to three different male supervisors, their responses did little to stop the

“inappropriate” conduct. One laughed at Brown and made light of it with other male

employees.    And, while another one supposedly demoted Houston back to cook,

nothing in his personnel file indicated that the supposed demotion was due to any

mistreatment directed towards female co-workers. Nor was there anything in that file

memorializing either his instances of “inappropriate” behavior or any discipline related

thereto. Instead, one of the men who owned Sonic and knew of Houston’s actions was



                                            10
telling a potential employer of Houston that he was a “good worker.” At the very least,

this contradictory evidence provided jurors rational basis to discredit the testimony of

any Sonic representative about their effort to make substantive (or any) change in the

environment in which Brown was obligated to work.

      Of course, Brown was free to leave, as she eventually did.           But, again, a

workplace wherein females have to experience or otherwise live with repeated sexual

advances to remain an employee or otherwise flourish (when her male counterparts do

not) falls short of providing equal opportunity. Consequently, the record contains both

legally and factually sufficient evidence to support the findings that 1) Brown labored in

a sexually abusive working environment that affected a term, condition or privilege of

her employment and 2) Sonic both knew of and failed to take steps to repudiate or

eliminate that environment.

      We note the various cases Sonic relied on to support its argument that the

environment was not sufficiently hostile or abusive. They consist of Garcia v. Schwab,

967 S.W.2d 883 (Tex. App.–Corpus Christi 1998, no pet.), Staller v. Service Corp. Int’l,

No. 04-06-00212-CV, 2006 Tex. App. LEXIS 9130 (Tex. App.–San Antonio, October 25,

2006, no pet.), Twigland Fashions, Inc. v Miller, supra, and our opinion in City of San

Antonio v. Cancel. Yet, each is easily distinguishable from the circumstances before us.

In the first three, the employee claimed sexual harassment after being fired. Formal

complaints about being sexually harassed were not made before then. This is of import

because the employee must establish that the work environment was both objectively

and subjectively offensive, that is, one that a reasonable person would find hostile or

abusive and one that the victim in fact did perceive it to be so. Staller v. Service Corp.



                                           11
Int’l, supra; City of Houston v. Fletcher, 166 S.W.3d 479, 489 (Tex. App.–Eastland

2005, pet. denied). Failing to complain hardly illustrates a subjective belief that the

workplace is offensive. Furthermore, without the employer being told of any complaint,

it is somewhat difficult to show that the employer either knew of them or failed to take

remedial action, both of which were elemental to recovery. Moreover, the inappropriate

behavior in Cancel was not repeated over a period of time. The same cannot be said

here, however. Some evidence exists upon which a reasonable juror could find that

Brown repeatedly complained to her superiors and that the multiple complaints met with

a cavalier or de minimis response from the employer.

      Instead, the circumstances before us liken more to those in Dillard Dept. Stores,

Inc. v. Gonzales, 72 S.W.3d 398 (Tex. App.–El Paso 2003, pet. denied), where a finding

of sexual harassment was upheld. There, Gonzales’ supervisor (Tellez) would come

from behind and lean his body over and against the back of Gonzales, hug Gonzales,

direct sexual remarks toward him, and, at least once, poke Gonzales in the buttocks

with a shoe box. His complaints simply resulted in Tellez being admonished about the

conduct.   Thereafter, Tellez redirected his behavior towards other male employees.

Here, Houston hugged Brown despite being told by Brown that it was offensive,

“spooned” with her against her objections, and waited until Brown was bent over to rub

her back down to her buttocks. So too did Houston make sexually suggestive remarks

about other women. And, while he did not dispute any of the accusations levied against

him, Sonic not only retained him as an employee but also told others he was a good

one. Simply put, neither Staller, Garcia, Twigland, or Cancel control the outcome here.




                                          12
         Issue Two--Attorney’s Fees

         Sonic next complains of the attorney’s fees awarded Brown. Not only does it

suggest that they should have been denied her because of her failure to comply with

discovery requests inquiring into the matter of fees, but also because permissible fees

were not segregated from impermissible ones.

         Regarding the first complaint, we note that Brown replied to Sonic’s discovery

requests by asserting the attorney/client privilege and contending that the information

could be secured through easier means.          Sonic neither filed a motion to compel

disclosure of the information at issue nor otherwise requested a pretrial hearing to

assess the legitimacy of the response. Nor did it contend on appeal that the response

failed to justify Brown’s withholding of discovery. Instead, it simply wants us to exclude

all evidence encompassed by the discovery requests.          But, because Sonic never

challenged the validity of Brown’s replies below, we cannot say whether the trial court

erred in admitting evidence of the amount of attorney’s fees incurred by her. This is so

because if the replies were legitimate (an issue we do not decide), Brown was not

obligated to provide the information. And, if she was not obligated to provide it, she

cannot be punished for failing to provide it.    So, Sonic failed to build the requisite

foundation upon which we could address its complaint on appeal, and we overrule the

issue.     See McKinney v. National Union Fire Insurance Company of Pittsburg,

Pennsylvania, 772 S.W.2d 72, 75 (Tex. 1989) (stating that the party securing discovery

has the burden to request a hearing upon the objections urged by his opponent).

         As for the dispute regarding whether the fees were properly segregated, it is

clear that a prevailing party must segregate recoverable from unrecoverable attorney's



                                           13
fees “in all cases.” Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007). Furthermore,

“[i]ntertwined facts do not make tort fees recoverable; it is only when discrete legal

services advance both a recoverable and unrecoverable claim that they are so

intertwined that they need not be segregated.” Tony Gullo Motors I, L.P. v. Chapa, 212

S.W.3d 299, 313-14 (Tex. 2006). And, when “it cannot be denied that at least some of

the attorney's fees are attributable only to claims for which fees are not recoverable,

segregation of fees ought to be required and the jury ought to decide the rest.” Id. at

314. With this in mind we note the absence of any contention that attorney’s fees were

recoverable for each cause of action pursued by Brown. Rather, she alleged a number

of claims sounding in tort and for which attorney’s fees were unavailable. Included in

such claims were negligence, gross negligence, libel, slander, battery, and retaliation.

      Now, one may legitimately conclude that in proving her claim of sexual

harassment, Brown may have also established her claim for battery. For instance,

proving that Houston touched her in offensive ways not only served to illustrate the

presence of an abusive workplace, but also established a battery. See Price v. Short,

931 S.W.2d 677, 687 (Tex. App.–Dallas 1996, no writ) (defining battery as an offensive

touching). Yet, we are left to wonder how attempting to prove that Brown was libeled or

slandered also advanced the sexual harassment allegation. The same is also true of

the claims sounding in negligence, negligence per se, gross negligence, negligent

retention, to name a few.      And, when asked whether there was any attempt to

segregate fees incurred in relation to the sole claim for which fees were recoverable

from the multiple claims for which they were not, the sole witness addressing the matter

stated: “[t]here was not. All the time that I spent on this case was time dedicated to the



                                            14
prosecution of certain claims by Plaintiff as a result of certain acts or omissions by

[Sonic] . . . . Those multiple acts or omissions provided the factual basis for every claim

. . . Plaintiff raised in her original and amended petitions.” The witness also opined that

“there was no way possible to separate times where I would be working on . . . common

law claims, but not her statutory Texas Labor Code claims.” Nowhere did the witness

explain why this was supposedly true. Nor did she endeavor to show how prosecuting a

“common law” claim necessarily advanced the development of the harassment claim.

       As stated earlier, “intertwined facts do not [alone] make tort fees recoverable.”

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d at 313-14. Instead, the claimant must

illustrate how prosecution of the tort claims also advanced the claim or claims for which

the recovery of fees was available to be freed from the burden to segregate. Brown did

not do so here; so, we must remand the issue for further development. See id. at 314

(concluding that because evidence of unsegregated fees constitutes some evidence of

an entitlement to segregated fees, remand was required).

                            Brown’s Appellate Contentions

       Issue One -- Error in not Awarding More Fees

       Brown initially contends that the trial court erred in not awarding her the full

amount of attorney’s fees she requested. Given our resolution of Sonic’s complaint

regarding the segregation of fees and our decision to remand the question of what

attorney’s fees are actually recoverable, we need not address this issue.




                                            15
       Issue Two -- Directed Verdict on Claim of Battery

       In her second issue, Brown argues the trial court erred in granting a directed

verdict in favor of Sonic on her claim of battery.2 Sonic had moved for such on the

ground that no evidence supported her effort to render it vicariously responsible for any

assaultive conduct committed by Houston. We overrule the issue.

       A directed verdict may be proper when a plaintiff fails to present evidence raising

a fact issue regarding an essential element of the plaintiff’s claim. Prudential Ins. Co. v.

Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). In reviewing the decision, we

credit favorable evidence if reasonable jurors could and disregard contrary evidence

unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d at 827.

       Next, the elements of battery mirror those of criminal assault. See Johnson v.

Davis, 178 S.W.3d 230, 240 (Tex. App.–Houston [14th Dist.] 2005, pet. denied). And a

person commits an assault if he intentionally or knowingly causes physical contact with

another when the person knows or should reasonably believe that the other will regard

the contact as offensive or provocative.            See TEX. PENAL CODE ANN. §22.01(a)(3)

(Vernon 2011).       Additionally, to render an employer liable for a civil battery by its

employee, the purported victim must establish that the act 1) fell within the scope of his

general authority, 2) was in furtherance of the employer’s business, and 3) was for the

accomplishment of the object for which the employee was hired. See Robertson Tank

Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971). While “’it is not ordinarily

within the scope of a servant’s authority to commit an assault on a third person,’. . .


       2
         Brown alleges she was the victim of a battery but acknowledges the elements of a civil battery
are the same as an assault under § 22.01(a)(3) of the Texas Penal Code. TEX. PENAL CODE ANN.
§22.10(a)(3) (Vernon 2011) (section entitled “assault”). We refer to this claim as assault rather than
battery.

                                                  16
exceptions may exist where the assault, although not specifically authorized by the

employer, is closely connected with the servant’s authorized duties, such as where a

security guard uses more force than is necessary in protecting the employer’s property.”

Medina v. Herrera, 927 S.W.2d 597, 601 (Tex. 1996).               Yet, those are not the

circumstances present here.

       Though Sonic allegedly classified Houston as a “manager-in-training,” the extent

of his duties was far from developed. While there is some evidence indicating that they

included cooking and collecting money from the carhops, there is no evidence that they

encompassed the engagement in physical contact with anyone, whether sexual in

nature or otherwise. Nor has anyone cited us to evidence explaining what a “manager-

in-training” was supposed to do and whether it included any supervisory authority over

carhops and the performance of their general duties. While Brown insinuates that it did,

her conclusions were not accompanied by any record references. It may well be that a

manager-in-training encompassed training to run the entire operation of Sonic. Or it

may mean that his duties were limited to supervising the kitchen and collecting money.

But, we are not free to guess what they were. And, while a title may sound impressive

and authoritative, it is all too true that titles are often little more than a title. Without

some evidence that being a manager-in-training obligated Houston to engage in

physical contact with or otherwise supervise carhops like Brown, we cannot simply

conclude from the title given him that it did.     This is especially true given Brown’s

admission when asked if Houston had “any business trying to tell her how to do her job.”

She responded: “Not to my knowledge, no he didn’t.” (Emphasis added).




                                             17
       As for the allegation that there was sufficient evidence of ratification to avoid a

directed verdict, Brown cites us to evidence of knowledge coupled with inaction. As

previously mentioned, a rational jury could have reasonably found that Sonic both knew

of and did nothing to stop Houston’s objectionable acts. Yet, ratification cannot be

inferred from knowledge and inaction alone. See e.g., Green v. Jackson, 674 S.W.2d

395, 399-400 (Tex. App.–Amarillo 1984, writ ref’d n.r.e.) (holding that summary

judgment on the issue of ratification was appropriate despite the presence of evidence

illustrating knowledge of the employee’s misconduct and inaction by the employer).

       In sum, we reverse that portion of the judgment awarding Brown attorney’s fees

and remand that issue to the trial court for further proceedings. All other aspects of the

judgment are affirmed.

                                                 Brian Quinn
                                                 Chief Justice




                                            18
