Lead Opinion
OPINION
Twigland Fashions, Ltd. (“Twigland”) appeals a judgment awarding one of its former store managers, Nemia Miller, $12,000 in actual damages on a hostile-work-environment theory of gender-based job discrimination through a supervisor’s sexual harassment. See Tex. Lab.Code Ann. §§ 21.051, .2585 (West 2006); Burlington Indus., Inc. v. Ellerth,
In five issues, Twigland asserts that (1) the evidence was legally insufficient to support a jury submission or finding of its liability under a hostile-work-environment sexual-harassment theory, or it was at least factually insufficient to support that finding; (2) Twigland conclusively established its Faragher/Ellerbh affirmative defense or that the jury’s failure to find for Twigland on that issue was. against the great weight and preponderance of the evidence; (3) Miller failed to present legally or factually sufficient evidence that she incurred any compensatory damages; (4) the district court abused its discretion in admitting certain evidence; and (5) the evidence was legally and factually insufficient to support the attorney’s fee award given the amount of actual damages awarded. Because we agree with Twig-land that the evidence was legally insufficient to support submission of Miller’s hostile-work-environment theory of liability, we will reverse and render judgment that Miller take nothing on her claims.
BACKGROUND
Appellant Twigland is a women’s apparel retailer that operates a chain of stores
Before her termination, it is undisputed that Miller never claimed to anyone at Twigland — or any other person, for that matter — that she had been sexually harassed on the job. Following her termination, however, Miller obtained counsel, who, on March 14, 2006, wrote Twigland’s legal department advising of his retention in connection with Miller’s termination, “including but not limited to claims of sexual harassment and retaliation, and related claims.” On March 28, Miller filed a charge of discrimination with the Austin Equal Employment/Fair Housing Office accusing Alonzo of having sexually harassed her between November 9 and December 28, 2005, the final seven weeks of her tenure at Twigland. According to Miller, Alonzo “would question me regarding my personal, sexual life and experiences,” “professed his love for me and told me that I owed him kisses and hugs,” and, “[o]n one occasion, ... came up behind me and grabbed me and wrapped his arms around me and pressed his body against mine.” Miller further charged that she “avoided his actions whenever possible and made every effort not to be left alone with him.” She attributed her eventual termination— which, she claimed, came “[ajfter approximately two weeks of avoiding” Alonzo — to “retaliation for denying his sexual advances towards me.”
After exhausting her administrative remedies, Miller sued Twigland alleging that her firing constituted gender-based employment discrimination through quid-pro-quo sexual harassment, in violation of the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab.Code Ann. § 21.051; Ellerth,
Before trial, Miller non-suited her assault claims and proceeded to trial under her TCHRA claims against Twigland. Miller relies on the following evidence in support of the verdict and judgment.
According to Miller, Alonzo’s sexually harassing conduct was preceded and accompanied by what she regarded as increasing unjustified criticism of her job performance. She testified that toward the end of 2005 she perceived that Alonzo “would pick on me over little, petty things” related to her store’s operations when, at least in her view, there was no merit to his complaints.
Miller claimed that at unspecified times during October or November 2005, Alonzo had made “very light, physical contacts” with her “at times when behind the counter would be overcrowded and I would be taking care of customers” in her store. According to Miller, Alonzo, “would just touch my waist as he walk[e]d past me from behind and sort of like brushed against my behind.” Miller acknowledged that “I didn’t think anything of it at all” when these contacts occurred. Miller also testified that Alonzo would have her leave the store and accompany him to the Highland Mall food court, where the two would conduct their business meetings because her “store at the time didn’t have an office.” She complained that during these meetings — which, according to Miller, could last “for hours” because “[w]e would disagree on certain things” — Alonzo “would just put his hand on mine.”
Alonzo’s actionable sexual harassment, in Miller’s view, began on Noveinber 9— one week after her November 2 reprimand — while she and Alonzo were conducting one of their business meetings in the Highland Mall food court. According to Miller, “[w]e were discussing other issues that we were having with some of my associates [store employees],” when Alonzo “pause[d] and just suddenly busted out and just asked me, ‘So how many men have you slept with Nemia?’ ” Miller professed “total shock” at the question, but eventually answered it because she “was afraid I was going to lose my job and I
Miller also testified that Alonzo “said that he wanted to be friends outside work and for me not to tell anyone, that I have to be quiet about it,” adding that remaining quiet was “important because the only friend he’s ever had outside work was Anna.” “Anna,” the evidence reflected, was a former store manager who had been promoted under Alonzo’s supervision. According to Miller, she understood Alonzo’s remarks to mean that “I was going to get promoted eventually and succeed with the company” if she would agree to be friends with Alonzo outside of work, and if not, “that I was going to lose my job and he was going to make me look bad.”
Miller claimed that she was “humiliated” and “completely appalled” by the events during this meeting, to the extent that she “woke up in the middle of the night,” and for the first time in her life, began a diary to record her experiences. Twigland introduced the diary into evidence. It is handwritten, with entries that purport to be contemporaneous accounts of events occurring on November 9 and 11 and December 7, 8, 15, and 28, 2005. These dates generally correspond to the timing of incidents with Alonzo to which Miller testified at trial, although the diary omits various alleged acts and details Miller revealed in her courtroom account.
Miller further testified that during a phone conversation at or around the same time — November 11, her diary indicates— Alonzo informed her that she “owed” him “a hug” for failing to comply with instructions from his superior concerning the placement of balloons in her store to alert customers to a sales promotion.
Following Alonzo’s November 9 store visit and November 11 phone conversation, the next alleged act of which Miller complained occurred on December 7. On that day, Alonzo visited Miller’s store, accompanied by Twigland president John “Mr. John” Won. Won would periodically visit the store to evaluate first-hand its cleanliness, presentation, and employee performance.
On the following day, December 8, which had been one of her scheduled days off, Miller testified that Alonzo called her and told her to meet him at her store at a designated time.
A week later, on December 15, Alonzo visited Miller’s store again, accompanied by Debe Lavarius, Alonzo’s immediate superior. In her diary, Miller acknowledged that “Debe was furious” because Miller had permitted members of her lower-management team to take time off during the holiday season, leaving the store shorthanded during one of its busiest times of the year. Miller wrote that this was one of the occasions in which Alonzo counted “kisses”:
Henry also mentioned in the store that because I screwed up again ... this time I owe him 6 kisses. I don’t know where his #’s are coming from but last time I remembered him talking about it, I thought he said that I owed him 4 kisses, for what? I don’t know ... I don’t really pay attention to him anymore when he starts talking nonsense.
(Ellipses in original.) At trial, Miller recounted that Alonzo’s exact statement, made within hearing of others, was that she “owed him six” because she had understaffed her store during the holiday season.
Miller was terminated three days after a Christmas Day incident in which she had failed to promptly respond to a cell-phone call from Brinks, the company that monitored the security alarm at her store, notifying her that the alarm had been triggered.
Alonzo denied ever harassing Miller, and Twigland attempted to raise the inference
Twigland also elicited admissions from Miller that Alonzo had never sexually solicited her, asked her to have sex with him, made a sexual advance toward her, or actually attempted to kiss her. She further conceded that despite Alonzo’s alleged conduct during November and December 2005, it had not impacted her job performance and that, to the contrary, she perceived her performance had bested that of Alonzo’s other store managers and was actually improving. In fact, Miller’s store was named Twigland’s “Store of the Month” for December 2005. On the other hand, Miller maintained that Alonzo’s conduct made it “harder” for her to do her work while he was in the store, elaborating, ‘Whenever he was in the store I would inquire about what he’s going to do next, what’s going to happen now. And I would constantly think about that and worry about that, that I wasn’t effective at all with work.” However, Miller conceded that these impediments arose only “[wjhen [Alonzo] was in the store, but not when he was actually not in the store,” and that Alonzo (who was responsible for nine stores spread between Austin and Eagle Pass) was in her store only once or twice per month. However, Miller claimed that when Alonzo did visit her store, he typically stayed “[a]n entire day,” and she suggested that this was somewhat longer than his visits to other stores with male managers.
The district court submitted to the jury both Miller’s quid-pro-quo Lability theory (whether Miller was “subjected to unwelcome sexual advance(s) or demand(s)” by Alonzo and that her “submission to or refusal to submit” to such advances or demands was a “motivating factor” in her termination), her hostile-work-environment theory, and Twigland’s Faragher/Ellerth affirmative defense to vicarious liability under Miller’s hostile-work-environment theory. See Faragher,
Miller’s claim for attorney’s fees and expert fees was tried to the district court, which awarded Miller $118,625 in reasonable and necessary trial-level attorney’s fees, $85,000 in contingent appellate fees and $1,440 in expert-witness fees. The court entered findings of fact and conclusions of law in support of these awards. The district court subsequently rendered final judgment awarding Miller the actual damages awarded by the jury, prejudgment and post-judgment interest on that amount, plus the attorney’s fees and expert fees the court had found. This appeal ensued.
ANALYSIS
Twigland brings five issues on appeal, contending that (1) the evidence was legally insufficient to support the jury submission of Miller’s hostile-work-environment theory and legally and factually insufficient to support the jury’s finding on that issue; (2) the evidence conclusively established Twigland’s Faragher/Ellerth affirmative defense to Miller’s hostile-work-environment theory or the jury’s contrary finding was against the great weight and preponderance of the evidence; (3) the evidence was legally and factually insufficient to support the jury’s award of any compensatory damages to Miller; (4) the district court’s award of almost $150,000 in attorney’s fees to Miller on her mere $12,000 actual-damages recovery was excessive and not supported by legally or factually sufficient evidence; and (5) that the district court abused its discretion in admitting certain evidence of Alonzo’s conduct involving other Twigland employees. We need only consider Twigland’s first issue, as it is dispositive.
We will sustain a legal-sufficiency complaint if the record reveals: (a) the complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson,
When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is less than a scintilla and, in legal effect, is no evidence. Ford Motor Co. v. Ridgway,
When reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact, we must consider, weigh, and examine all of the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside. Plas-Tex, Inc. v. U.S. Steel Corp.,
The TCHRA provides administrative remedies against “unlawful employment practices,” and, once those remedies are exhausted, judicial remedies including recovery of certain damages, equitable relief, and attorney’s and expert-witness fees. See Tex. Lab.Code Ann. §§ 21.201-.262 (West 2006). The TCHRA’s general prohibition against “unlawful employment practices,” section 21.051 of the labor code, provides, in relevant part:
An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with ... the terms, conditions, or privileges of employment....
Id. § 21.051. Section 21.051 is modeled on and “ ‘is substantively identical to its federal equivalent in Title VII’ but adds age and disability to the protected categories.” Texas Parks & Wildlife Dep’t v. Dearing,
The statutory focus of labor code section 21.051, like Title VII, is employer conduct that “discriminates ... against an individual in connection with ... the terms, conditions, or privileges of employment.” With regard to gender discrimination, the U.S. Supreme Court has recognized that the phrase “terms, conditions or privileges of employment” is not limited to “ ‘terms’ and ‘conditions’ in the narrow contractual sense, but ‘evinces a congressional intent to strike, at the entire spectrum of disparate treatment of men and women’ in employment.’” Oncale v. Sundowner Offshore Servs.,
While potentially actionable under other civil-liability theories, such as common-law assault, or even prohibited by the criminal law, sexual harassment — “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature,” Vinson,
Consistent with the statutory focus on discriminatory employment terms and conditions, a plaintiff asserting a hostile-work-environment sexual-hárassment theory of job discrimination against her employer has the burden of establishing not only that: (1) she is a member of a protected class (e.g., a woman); (2) she was the victim of uninvited sexual harassment; and (3) the harassment was based on sex; but also that (4) the harassment affected a “term, condition, or privilege” of her employment. See Harvill v. Westward Commc’ns, L.L.C.,
“[N]ot all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition or privilege’ of employment.” Vinson,
Title VII does not prohibit genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. A recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. These standards for judging hostility are sufficiently demanding to ensure the Title VII does not become a general civility code.
Faragher,
The core concept of the hostile-work-environment sexual-harassment theory is that sexual harassment has created an environment that, through the impact it would have on the victim, can be said to discriminatorily alter a “term, condition, or privilege” of employment. See Ellerth,
The Supreme Court has described the “abusiveness” standard as requiring “extreme” conduct, Faragher,
A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VU’s broad rule of workplace equality.
Id. at 22,
Whether conduct is sufficiently “extreme” to create an “abusive” work environment is to be viewed from both an objective and subjective standpoint. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive working environment — an environment that a reasonable person would find hostile or abusive — is beyond [the statute’s] purview.” Harris,
The Supreme Court has also emphasized that “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiffs position; considering ‘all the circumstances,’” with “careful consideration of the social context in which a particular behavior occurs and is experienced by its target.” Oncale,
The U.S. Supreme Court has acknowledged that objective abusiveness “is not, and by its nature cannot be, a mathematically precise test.” Harris,
We begin by examining the frequency or pervasiveness of Alonzo’s alleged conduct. Drawing reasonable inferences in Miller’s favor, Alonzo’s actionable harassment occurred during only the final forty-nine days before her fourteen-month tenure at Twigland ended in termination.
• On November 9, during one of her food-court meetings with Alonzo while he was visiting her store, Alonzo asked Miller how. many men she had slept with. .
• During the same meeting, Alonzo expressed a desire to “be friends” with Miller outside the workplace, insinuated that it would help her career, and insisted that it was “important” that she keep the relationship secret.
• Beginning in a November 11 phone conversation, Alonzo periodically advised Miller, explicitly or with coded references, that she “owed” him “hugs” or “kisses” for her poor job performance.
• During Alonzo’s next store visit on December 7 — almost one month afterward — Alonzo gave Miller two uninvited full-body hugs from behind for “like maybe a second or so” in a back storage room in the store.
• During a meeting on the following day at Barton Creek Mall, after an argument that Alonzo compared to a “lover’s quarrel,” Alonzo divulged that he “loved” and “cared” about Miller but acknowledged, “It’s just business,” and, “Obviously, you don’t feel the same.” He then indicated that Miller “owed him another kiss and that he would get those kisses when [Miller] least expected.”
Miller also indicated that at unspecified times during Alonzo’s store visits — which occurred on November 9, December 7, and December 15 — Alonzo made “very light, physical contacts” with her “at times when behind the counter would be overcrowded and I would be taking care of customers.” She added that during food-court meetings during these visits, Alonzo “would just put his hand on mine.” Miller also testified that Alonzo made one of his coded references to accruing “kisses” during his December 15 store visit. Finally, Miller complains that during their December 28 meeting in which he terminated her, Alonzo cried, bemoaned the “plans” he had “for us,” and' indicated that he had wanted to take Miller to a restaurant and bar in what could be considered a romantic setting.
Miller acknowledged that Alonzo — who supervised stores in a region extending from Austin to Eagle Pass — was typically in her store only once or twice per month and in fact was in her physical presence during only four days of the forty-nine-day period in which she claimed Alonzo harassed her — the November 9 store visit, the December 7 store visit, the December 8 meeting at Barton Creek Mall, and a December 15 store visit. While Miller insisted that Alonzo’s visits to her store would typically last for the entire work day and that their food-court meetings might last hours, it remains that these face-to-face encounters and any alleged harassment occurring on those occasions were relatively infrequent compared to the far more numerous work days in which Alonzo was not around. Miller did not complain of any harassment when Alonzo was not present other than the November 11 phone conversation in which Alonzo pur
Alonzo’s alleged conduct lacks the frequency or pervasiveness that is typically required to establish an actionable hostile-work-environment sexual-harassment claim. See, e.g., Puckett v. City of Portsmouth,
Although even infrequent harassment may be deemed to alter terms, conditions, or privileges of employment if especially egregious, see Faragher,
In arguing that the objective severity of Alonzo’s conduct rises to the level of altering terms, conditions, or privileges of her employment, Miller emphasizes the two December 7 hugging incidents. Miller recounted that she was “kind of like halfway bent down” when Alonzo approached “and just gave me this really tight hug” while uttering “some comment about the holiday.” Miller claimed that “all of his body” came into contact with hers, with his arms “in front of me,” in a manner that “I would probably get from a spouse or a boyfriend.” This embrace, according to Miller, “lasted like maybe a second or so” before she “broke loose as fast as I could.” Alonzo then gave her another similar hug a few minutes later. While no doubt highly offensive to her, we cannot conclude, in light of the foregoing cases, that these two isolated and brief incidents, alone or in combination with Alonzo’s other alleged conduct, would be considered the sort of objectively severe conduct that would be deemed to alter the terms, conditions, or privileges of Miller’s employment. See Hockman,
Miller also relies on the concept that because Alonzo was her supervisor, his conduct was invested with “a particular threatening character” due to his “power and authority” over her. Ellerth,
Finally, we consider the extent to which Alonzo’s conduct unreasonably interfered with Miller’s work performance. See Harris,
Guided by the foregoing jurisprudence, we must conclude that Miller has not presented legally sufficient evidence that any sexual harassment by AlonzO rose to the level of altering the terms, conditions, or privileges of her employment and “creating] an abusive working environment.” Harris,
Emphasizing the language of the two-judge panel of this Court in Davis, Miller urges that because “gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogenous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harass-ment_” Davis,
Our disposition of Twigland’s first issue requires us to reverse and render judgment that Miller take nothing on her claim. We need , not reach Twigland’s other appellate issues. See Tex.R.App. P. 47.1.
Chief Justice LAW not participating.
ORDER
PER CURIAM.
The appellee Nemia Miller has filed a motion for reconsideration en banc. The motion is denied.
It is ordered October 22, 2010.
Dissenting Opinion by Justice HENSON, joined by Justice PATTERSON.
Notes
. The record indicates that "A'gaci” is a Korean word for an elegant woman. Twigland describes the A’GACI chain’s marketing focus as ”sell[ing] affordable fashion-forward clothing typically to women ranging from ages fifteen to thirty.”
. Miller also asserted what she styled as a separate cause of action for retaliation, alleging that her firing was retaliation for her opposing the "discriminatory practice” of Alonzo’s sexual harassment. See Tex. Lab.Code Ann. § 21.055 (West 2006) (prohibiting retaliation against a person for "opposing] a discriminatory practice”). However, the district court did not submit retaliation to the jury separately from Miller's quid-pro-quo sexual-harassment theory, and Miller does not complain of that action on appeal.
. A defending employer may raise the Faragher/Ellerth affirmative defense to bar the imposition of vicarious liability for a hostile-work-environment sexual-harassment claim predicated on the actions of a supervisor. The employer must prove by a preponderance of the evidence that: (1) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher v. City of Boca Raton,
. Miller cited the example of a complaint from superiors that "my. girls [the term she used to identify her store employees] not smiling when I’m completely satisfied with them.”
.For example, Miller's diary summarized the events during her November 9 meeting with Alonzo as follows:
Today is the first day that Henry had asked me about things that are more personal. He wanted to know how many men I’ve slept with. I was really embarrassed ... but I told him [answer redacted]. He then said that we can be friends, but no one else will know ... what does that mean? ? I don’t know ... I must be stupid? ?
(Ellipses in original.)
. As before, Miller characterized the infraction as minor and insignificant.
. Miller observed that "dust bunnies” were a particular concern of Mr. John, as were store employees’ "energy” and friendliness with customers.
. In her diary version of these events, Miller states only that "I went to the back looking for ‘sale’ stickers & Henry followed along. To my surprise he hugged me from the back. That was weird. Does that mean that he’s throwing me hints? Or being perverted? He did that twice today....” (Ellipsis in original.)
. Miller added that the roads were icy that day.
. Miller's diary reflects the following events during her meeting with Alonzo:
He kept telling me that I just don’t get what I did wrong, why my visit was bad, that I don't understand. I agreed & I asked him to tell me why? He said it was because my girls aren’t energetic enough, not loud enough w/call outs [a security measure through which store employees kept track of customers in the store] (which I thought we did well). He said that Mr. John said that he deserves better than what or how my team & I performed during the visit. During our long meeting he mentioned that he cares about me & that he loves me several times. I at this time I wasn’t com*214 prehending his meanings. Then he said that he knows that the feelings are mutual. I then reacted & asked "What does that mean?" He said that he loves me & cares about me & wants me to do well, & that he doesn’t think I care about respecting him, because my team’s reaction to the visit was very disrespectful. I’m still lost, he keeps going around & around. I’m kinda confused. Then when we were ending our conversation or meeting, he said that I owe him a kiss for putting him through what I’ve put him through[,] that he will kiss me when I least expect it ... I just laughed along, not knowing how to react to this incident.
(Ellipsis in original.)
. It later turned out that a back door had come open.
. There was evidence that Miller had previously been provided a universal password to be used in obtaining information from Brinks in the event the store alarm was activated.
. The Oasis is an Austin-area restaurant and bar overlooking Lake Travis that is known for its sunset views.
. I.e., beginning November 9, 2005 and ending with her December 28 termination.
. See also Oncale v. Sundowner Offshore Servs. Inc.,
Concurrence Opinion
concurring.
I concur in the order overruling the motion for rehearing en banc. I write separately to explain my reasons for doing so.
Under the Texas Rules of Appellate Procedure, en banc consideration of an appeal is disfavored:
En banc consideration of a ease is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration.
Tex.R.App. P. 41.2(c). I believe “extraordinary circumstances” include such matters as (1) addressing legal issues on which Texas courts of appeals are split; (2) addressing issues .that are highly significant to the public or in which the public has a high level of interest; and (3) overruling an earlier decision of this Court. In addition, “extraordinary circumstances” may include other cases in which it is imperative, for whatever reason, that this Court speak with one voice. I do not believe the present case falls into any of those categories.
That leaves the category of cases in which it is “necessary to secure or maintain uniformity of the court’s decisions.” I do not believe the present case satisfies, that standard either. The present case is highly fact-specific, as was the Davis case.
I take no position on the merits of the present case, because I do not believe the case rises to the level at which en banc review is permissible under the rules. The dissenting justices believe that the evidence favoring the plaintiff in the present case constitutes more than a scintilla, while the justices on the original panel take the opposite view. In my view, this does not satisfy the strictures of rule 41.2(c).
. Wal-Mart Stores, Inc. v. Davis,
. Moreover, if this Court were to hear or rehear en banc every case in which two or
Dissenting Opinion
dissenting.
I respectfully dissent from the decision to deny the motion for en banc reconsideration. Because the panel’s opinion in this case conflicts with this Court’s prior decision in Wal-Mart Stores, Inc. v. Davis,
In determining whether there was legally sufficient evidence to support the jury submission of Miller’s hostile-work-environment theory, the record is to be examined for evidence supporting Miller’s theory, and all evidence to the contrary must be ignored. See Elbaor v. Smith,
This Court acknowledged in Davis that hostile-work-environment claims are particularly suited to disposition by jury, rather than the judgment of a reviewing court with a cold record. See
In fact-specific cases such as this one, where there is no “mathematically precise test” to be applied, id. at 42, we must be mindful of the jury’s role as arbiter of the weight and credibility of the evidence. See Golden Eagle Archery, Inc. v. Jackson,
Did HENRY ALONZO engage in sexual harassment of NEMIA MILLER by conduct of a sexual nature that was unwelcome and undesirable or offensive to her and that altered a term, condition or privilege of employment?
Harassment alters a term, condition, or privilege of employment when a reasonable person would find that the harassment created an abusive working environment. In determining whether an abusive work environment existed, consider the following: the frequency of the conduct; its severity; whether it was physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interfered with an employee’s work performance.
It was within the province of the jury to apply this reasonable-person standard to determine whether Alonzo’s conduct altered a term, condition, or privilege of Miller’s employment. See Harris v. Forklift Sys., Inc.,
The panel concludes that there is no evidence that Miller was subjected to a hostile work environment and that reasonable minds could not differ on the matter, despite the fact that Miller testified to numerous incidents of inappropriate touching, including two unwanted hugs from behind in which “all of [Alonzo’s] body” came into contact with hers, as well as a number of sexually charged comments and questions that caused her to feel “humiliated” and “completely appalled.” In addition, it is not insignificant that these incidents involved Miller’s direct supervisor, as this Court noted in Davis that “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character .” Id. (quoting Burlington Indus., Inc. v. Ellerth,
The panel cites a number of federal opinions from various jurisdictions in which the reviewing court found that there was no evidence of a hostile work environ
In addition, the panel cites Miller’s ability to successfully manage her store during the period of harassment in support of its conclusion that she has presented no evidence of a hostile work environment. It is true that the Supreme Court has held, and the jury here was instructed, that one of the factors to be considered in determining whether a work environment is hostile or abusive is “whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc.,
Because the panel’s decision represents a significant departure from this Court’s prior hostile-work-environment jurisprudence, see Davis,
. The opinion points out that Miller outperformed other store managers under Alonzo’s supervision, but given the evidence presented to the jury in connection with Twigland's failure to respond to the numerous complaints from its other female employees about Alonzo's harassing treatment, it would not be unreasonable to assume that the store managers Miller was outperforming were dealing with similar harassment of either themselves or their employees.