Fossil Group, Inc. v. Nicole Harris

Supreme Court of Texas

══════════

No. 23-0376

══════════

Fossil Group, Inc.,

Petitioner,

v.

Nicole Harris,

Respondent

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fifth District of Texas

═══════════════════════════════════════

Argued March 21, 2024

JUSTICE DEVINE delivered the opinion of the Court.

JUSTICE BLACKLOCK filed a concurring opinion.

JUSTICE YOUNG filed a concurring opinion, in which Chief Justice

Hecht joined.

The central question in this workplace sexual-harassment case is

whether the summary-judgment record bears any evidence that a

company knew or should have known its employee was being harassed

and failed to take prompt corrective action. The court of appeals

reversed the trial court’s judgment for the company, holding that the

employee’s testimony that the company failed to respond to an email she

allegedly sent through an anonymous reporting system is some evidence

of the company’s knowledge and failure to act. 1

The parties dispute whether the company received the email, but

we hold that even if it did, there is no evidence that its subsequent

actions were not prompt and remedial. Mere days after sending the

putative email, the employee voluntarily resigned, and she has not

identified any instances of interim harassment. The following week, the

store manager met with the employee after learning about the

harassment from another source and then immediately reported the

matter to human resources. By the end of the month, the company had

fired the harasser. We also hold that the employee did not raise a fact

issue that the company knew or should have known about the

harassment before the date of the email. Accordingly, we reverse the

court of appeals’ judgment and render judgment reinstating the trial

court’s take-nothing judgment.

I

Fossil Group, Inc. hired Nicole Harris to work as a seasonal sales

associate at its store in Frisco, Texas. Harris started in November 2018;

Fossil promoted her to a regular sales associate in January 2019; and

she worked in that position until she resigned in early May 2019.

1 682 S.W.3d 896, 905 (Tex. App.—Dallas 2023).

2

During Harris’s brief term of employment, Carey Zaborowicz was the

store manager and Leland Brown was an assistant store manager.

Shortly after Harris was hired, Brown began exchanging

social-media messages with her. Brown found her profile because

Harris kept it public to promote her modeling career. On December 3,

Brown sent her obscene and sexually explicit videos and photos of

himself with sexually suggestive messages. Harris blocked him on social

media, but at his request, she later unblocked him, and the exchange

continued.

From December to April, Brown sent Harris social-media

messages about her appearance and posted emojis on her modeling

photos. At work, according to Harris, Brown would comment on her

appearance, brush up against her, take pictures of her from behind, and

follow her to her car. In April, Harris again blocked Brown on social

media, and after April 16, she received no further messages. Harris told

two seasonal sales associates about Brown’s conduct. But she did not

feel comfortable telling someone with authority over him and did not

speak to management about the harassment until after she resigned. 2

Around the same time, Brown also sexually harassed K.K.,

another sales associate, through social media. 3 K.K. later expressed

discomfort to a “Third Key” employee, a store keyholder whose role is to

2 Harris acknowledged that while employed at Fossil, she was aware of

the company’s policy against sexual harassment, the mechanisms to report

harassment, and where to find additional details about the policy.

3 Brown admitted that between January and April, he sent K.K. more

than ten messages expressing how he “wanted to do sexual things with her or

tell her she looked good.”

3

assist the store manager. At the end of April, the Third Key employee

told Zaborowicz that Brown might be sexually harassing K.K.

Zaborowicz asked the Third Key employee to tell K.K. to come talk to

her, but K.K. did so only after Zaborowicz reached out to her directly in

early May. 4

In February, Harris became dissatisfied with her work schedule.

During that time, Harris was working two retail jobs—morning shifts

at Athleta and afternoon shifts at Fossil 5—along with taking college

courses and babysitting. Harris wanted to switch to morning shifts at

Fossil to avoid working with Brown. But she did not mention this reason

to management and was unaware that Fossil did not schedule sales

associates for weekday mornings because sales were not part of the job

responsibilities for those shifts.

In April, Harris worked only four shifts at Fossil—on April 3, 6,

19, and 28. Then, on May 2, Harris sent the following email to store

management:

I’m having trouble with my schedule and my jobs putting

everything together. I’m very sorry to do this but I need to

make Saturday [May 4] my last day with the team. I’m

getting over exhausted and putting a lot of stress on myself

trying to juggle 3 jobs and finish school to graduate.

Her last and only shifts in May were on May 3 and 4.

4 Zaborowicz explained that she did not immediately reach out to K.K.

or report the possible harassment in late April because K.K. had told the Third

Key employee in confidence and Zaborowicz wanted K.K. to feel comfortable

coming to her as the manager.

5 Harris worked six afternoon shifts in February and thirteen in March.

4

After sending her resignation email, Harris met with K.K. and

discussed Brown’s harassing conduct. On May 8, another Third Key

employee reported to Zaborowicz that K.K. had mentioned Brown’s

misconduct and that Harris might also be a victim. Zaborowicz

immediately called Harris, who described the sexually explicit content

Brown had sent her. The next day, Zaborowicz met with both Harris

and K.K. in person and reported the harassment to human resources the

same day. After an investigation, Fossil fired Brown at the end of that

month. In the interim, neither Harris nor K.K. worked with Brown

because Harris had voluntarily resigned and K.K. was studying abroad.

Harris sued Fossil for a hostile work environment under

Chapter 21 of the Texas Labor Code. 6 Harris alleged that in “late April

2019,” she “began efforts to formally report” Brown’s conduct and “sent

an email in response to an in-store company survey in which she stated

she felt she was being sexually harassed” but “received no response.”

When Fossil deposed Harris, she claimed she sent the email through

Fossil’s anonymous reporting system, not in response to a survey. 7

Fossil moved for traditional and no-evidence summary judgment.

Among other grounds, Fossil argued that there is no evidence it knew or

should have known about the harassment but failed to remedy the

situation and, to the contrary, the undisputed facts conclusively

6 Harris has conceded that Fossil is not vicariously liable for Brown’s

actions because he “was not a supervisor in the sense he did not have authority

on his own to alter her conditions of employment.”

7 Harris testified that the email described the sexually explicit nature

of the videos and pictures and Brown’s conduct of “taking pictures of me in the

store without me even noticing” and “brushing up against me.”

5

establish that Fossil took prompt remedial action. Specifically, Fossil

cited evidence that: (1) a report from the anonymous reporting system

shows no record of any complaints related to its Frisco store while Harris

was employed; (2) the company learned about Brown’s misconduct only

after Harris resigned; and (3) it then took prompt remedial action by

proactively reaching out to Harris and subsequently firing Brown.

In response, Harris asserted that Fossil knew or should have

known about the harassment because (1) Harris had told two coworkers

and K.K. that Brown was harassing her; (2) two Third Key employees

learned of Brown’s harassing conduct through K.K.; and (3) the store

manager, Zaborowicz, found out about Brown’s misconduct from the

Third Key employees in late April and early May. The response also

states that Harris “believes she sent” the email reporting the

harassment “[i]n late April” but “she cannot locate that email.” For

support, Harris attached the transcript of her own deposition as well as

testimony from Brown and Zaborowicz. 8

The trial court granted Fossil’s motion for summary judgment,

and Harris appealed. The court of appeals reversed, holding that

Harris’s testimony about her email is some evidence that Fossil knew or

should have known about Brown’s misconduct. 9 The court then

8 At the time of her response, Harris had a pending motion for leave to

file her third amended petition. In that petition, Harris pleaded additional

facts based on Brown’s deposition testimony that his previous employer, Old

Navy, had fired him for sexual harassment. Harris also relied on these facts

as summary-judgment evidence “that a prudent employer knew or should have

known” about Brown’s sexual misconduct. The trial court struck her amended

petition as untimely, and Harris has not challenged that ruling on appeal.

9 682 S.W.3d 896, 904-05 (Tex. App.—Dallas 2023).

6

summarily stated that “Fossil took no remedial action after Harris sent

the email.” 10 Fossil petitioned this Court for review, which we granted. 11

II

Section 21.051 of the Texas Labor Code, which is modeled on

Title VII of the Civil Rights Act of 1964, makes it unlawful for an

employer to discriminate “against an individual in connection with

compensation or the terms, conditions, or privileges of employment”

because of sex. 12 Following federal case law holding that Title VII

10 Id. at 905.

11 In the trial court, Harris also sued Brown individually for intentional

infliction of emotional distress. Brown filed a motion for summary judgment

on her claim, which the trial court granted. Although Harris purported to

appeal the rulings in favor of Fossil and Brown in her notice of appeal, she

identified Fossil as the only appellee in her appellate brief, made no argument

with respect to her claim against Brown, and prayed only that the court of

appeals reverse the judgment as to Fossil. Brown nevertheless filed a response

brief urging that Harris had waived any error as to his favorable judgment and

asking that it be affirmed. In its opinion, the court of appeals did not mention

Harris’s claim against Brown or list him as a party. See id. at 896. The court

of appeals’ judgment lists Brown as an appellee but reverses only “the trial

court’s order granting Fossil’s motion for summary judgment” without

mentioning the order dismissing the claim against Brown. We conclude that

Harris waived any challenge to the trial court’s judgment with respect to

Brown by failing to brief it. See Nall v. Plunkett, 404 S.W.3d 552, 556 (Tex.

2013) (holding that issues not raised in a brief to the court of appeals are

waived); see also TEX. R. APP. P. 38.1(f)–(i). We therefore treat the court of

appeals’ judgment as having affirmed the portion of the trial court’s judgment

dismissing Harris’s claim against Brown. Cf. Allen v. Allen, 717 S.W.2d 311,

312 (Tex. 1986) (“The absence of any reference to pleaded alternative grounds

of recovery does not render an order intrinsically interlocutory. All pleaded

issues are presumed to be disposed of, expressly or impliedly, by the trial

court’s judgment absent a contrary showing in the record.”).

12 TEX. LAB. CODE § 21.051(1); see 42 U.S.C. § 2000e-2(a)(1).

7

prohibits sexual harassment, 13 we have recognized that a statutory

cause of action for a hostile work environment 14 arises when (1) an

employee was subjected to unwelcome sexual harassment, (2) the

employee was harassed because of his or her sex, (3) the harassment

was so severe or pervasive as to alter the conditions of employment and

create a hostile work environment, and (4) some basis exists for holding

the employer liable. 15

The issue in this appeal is whether there is some basis for holding

Fossil liable for Brown’s harassing conduct. The parties agree that, in

13 An express purpose of Chapter 21 is to “provide for the execution of

the policies of Title VII” as enacted and amended. TEX. LAB. CODE § 21.001(1).

Consistent with that purpose, this Court has looked to federal law for guidance

when applying the state act’s analogous statutory language. Waffle House, Inc.

v. Williams, 313 S.W.3d 796, 804 & n.25 (Tex. 2010).

14 Sexual-harassment claims may also take the form of “quid pro quo

harassment, in which employment benefits are conditioned on sexual favors.”

Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 n.5 (Tex. 2004).

Harris does not allege quid pro quo harassment.

15 Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex.

2018); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“‘The phrase

“terms, conditions, or privileges of employment” evinces a congressional intent

“to strike at the entire spectrum of disparate treatment of men and women” in

employment,’ which includes requiring people to work in a discriminatorily

hostile or abusive environment.” (quoting Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 64 (1986))); Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206,

225 (Tex. App.—Austin 2010, no pet.) (noting that the purpose of a

hostile-work-environment claim “is not to combat sexual harassment as an end

in itself, however reprehensible such harassment may be, but to provide a

remedy when sexual harassment rises to a level so ‘extreme’ and ‘abusive’ that

it deprives the victim of equal opportunity in the workplace”).

The Labor Code now expressly prohibits sexual harassment, see TEX.

LAB. CODE §§ 21.141–.142, but those provisions do not apply to claims based

on conduct occurring before September 1, 2021, see Act of May 14, 2021, 87th

Leg., R.S., ch. 172, §§ 2–3, 2021 Tex. Gen. Laws 378, 379.

8

this case, the standard for liability requires evidence that the employer

“knew or should have known of the conduct” and failed to take prompt

remedial action. 16 In other words, an employer is liable if it is negligent

in having actual or constructive knowledge of the harassment and

failing to take prompt remedial action to stop it. 17

16 Our courts of appeals, as well as federal courts applying Title VII,

have consistently articulated this standard for sexual-harassment claims. See,

e.g., Johnson v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.,

90 F.4th 449, 457 (5th Cir. 2024); Arredondo v. Elwood Staffing Servs., Inc., 81

F.4th 419, 435 (5th Cir. 2023); Green v. Franklin Nat’l Bank of Minneapolis,

459 F.3d 903, 910 (8th Cir. 2006); In re Parkland Health & Hosp. Sys. Litig.,

No. 05-17-00670-CV, 2018 WL 2473852, at *8 (Tex. App.—Dallas June 4, 2018,

orig. proceeding); Tex. Dep’t of Fam. & Protective Servs. v. Whitman, 530

S.W.3d 703, 710 (Tex. App.—Eastland 2016, no pet.); Smith v. Carter

BloodCare, No. 02-12-00523-CV, 2014 WL 1257273, at *6 (Tex. App.—Fort

Worth Mar. 27, 2014, no pet.); Twigland Fashions, 335 S.W.3d at 218.

17 See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998) (“An

employer is negligent with respect to sexual harassment if it knew or should

have known about the conduct and failed to stop it.”); Johnson, 90 F.4th at 457

(“When the harasser is a co-worker, ‘the negligence standard governs employer

liability,’ and employers are only negligent if they ‘knew or should have known

about the conduct and failed to stop it.’” (quoting Hudson v. Lincare, Inc., 58

F.4th 222, 229-30 (5th Cir. 2023))); see also Hernandez v. Yellow Transp., Inc.,

670 F.3d 644, 651, 656 (5th Cir. 2012) (applying the “knew or should have

known” standard in the Title VII context by looking for evidence of actual or

constructive knowledge of the harassment); Smith, 2014 WL 1257273, at *3,

*6-8 (same for a Chapter 21 hostile-work-environment claim).

When the harasser is a supervisor, the employer may be vicariously

liable for the supervisor’s conduct in creating a hostile work environment,

without establishing the employer’s negligence, because the employer has

imbued such persons with “the authority to effect a tangible change in a

victim’s terms or conditions of employment.” See Vance v. Ball State Univ.,

570 U.S. 421, 431-40 (2013); Parkland Health, 2018 WL 2473852, at *8; Smith,

2014 WL 1257273, at *4-5. As Harris concedes in this Court, Fossil had not

empowered Brown to hire, fire, or take other tangible employment actions

against its employees and, therefore, was not a supervisor for purposes of her

9

Where, as here, a trial court grants a motion for summary

judgment that raises traditional and no-evidence grounds and both

parties present evidence, the ultimate issue is whether the nonmovant

raised a fact issue to preclude summary judgment. 18 Our review is de

novo, and to determine if a fact issue exists, we examine the evidence in

the light most favorable to the nonmovant, indulging reasonable

inferences and resolving any doubts against the moving party. 19

A

We first consider Harris’s email to the anonymous reporting

system, which the court of appeals relied on to determine that a fact

issue exists about Fossil’s knowledge of the harassment and its failure

to respond. 20 Although the parties primarily dispute whether Harris

presented competent evidence that she sent such an email, we need not

resolve that matter. Assuming Harris submitted an email complaint in

Chapter 21 claim. Supra note 6; see Vance, 570 U.S. at 431 (“We hold that an

employer may be vicariously liable for an employee’s unlawful harassment only

when the employer has empowered that employee to take tangible employment

actions against the victim.”); Arredondo, 81 F.4th at 433 (noting that a

“supervisor” is the person “the employer has empowered,” not who the plaintiff

perceives to be a supervisor). We express no opinion on whether this

understanding of “supervisor” applies to the recently enacted

Sections 21.141(2) and 21.142 of the Labor Code. See supra note 15.

18 See TEX. R. CIV. P. 166a(c), (i); Scripps NP Operating, LLC v. Carter,

573 S.W.3d 781, 790 (Tex. 2019) (noting that when both parties presented

summary-judgment evidence on a hybrid motion, the varying burdens for the

different types of motions are immaterial).

19 Scripps NP Operating, 573 S.W.3d at 790.

20 682 S.W.3d 896, 904-05 (Tex. App.—Dallas 2023).

10

“late April 2019,” there is no genuine issue of material fact that Fossil

failed to take prompt remedial action. 21

Prompt remedial action must be reasonably calculated to end the

harassment—a fact-specific and context-dependent inquiry. 22 Here, it

is undisputed that the store manager notified human resources about

Brown’s harassing conduct on May 9, the day after learning about it

from a Third Key employee; human resources then began an

investigation; Fossil fired Brown at the end of May; and Brown did not

work with Harris or K.K. during that time period. All this occurred

approximately within a month of Harris’s late April email and was

reasonably calculated to (and did) end any harassment by Brown. 23

21 See Gulf States Toyota, Inc. v. Morgan, 89 S.W.3d 766, 771 (Tex.

App.—Houston [1st Dist.] 2002, no pet.) (explaining that to prevail on a claim

for sexual harassment by a coworker, the employee bears the burden to

establish the employer did not take prompt remedial action); cf. Hudson, 58

F.4th at 230 (“[A]n employer is not negligent when it takes prompt remedial

action that is reasonably calculated to end the harassment.” (internal

quotation marks omitted)); Harvill v. Westward Commc’ns, L.L.C., 433 F.3d

428, 437 (5th Cir. 2005) (noting that a company on notice of sexual harassment

may avoid Title VII liability by taking prompt remedial action).

22 River Oaks L-M. Inc. v. Vinton-Duarte, 469 S.W.3d 213, 228 (Tex.

App.—Houston [14th Dist.] 2015, no pet.); Gulf States Toyota, 89 S.W.3d at

771; McMillon v. Tex. Dep’t of Ins., 963 S.W.2d 935, 939 (Tex. App.—Austin

1998, no pet.); cf. Johnson, 90 F.4th at 456 (explaining that a Title VII inquiry

of whether there was prompt remedial action is fact specific); Hudson, 58 F.4th

at 230 (noting that prompt remedial action must be reasonably calculated to

end the harassment to avoid Title VII liability).

23 Cf. Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 912

(8th Cir. 2006) (noting that “[t]he firing of the harasser in a hostile work

environment case can effectively bar a plaintiff’s claim,” although some cases

have concluded otherwise “where the employer waited much longer than one

month to terminate the employee”); cf. also, e.g., Johnson, 90 F.4th at 456

(holding that an eleven-day delay to commence investigation after a complaint

11

That the actions were taken in response to Fossil’s learning of the

harassment from another source does not change their remedial nature,

so long as they were sufficiently prompt from the time Fossil first

received notice.

Although Fossil’s response did not immediately follow the late

April email, complainants often must “tolerate some delay” for the

employer to gauge the complaint’s credibility and the seriousness of the

situation, 24 especially when a complaint is sent through an anonymous

reporting system. Within days of sending the email, however, Harris

voluntarily resigned on May 2 (effective May 4) without giving Fossil a

reasonable time to address her complaint while she was still employed. 25

Her resignation also lessened the urgency for the employer to respond

“does not demonstrate that [the employer’s] response was unreasonably

calculated to end the harassment”); Alvarez v. Des Moines Bolt Supply, Inc.,

626 F.3d 410, 421 (8th Cir. 2010) (concluding that twenty-one days was a

reasonable time for the employer to investigate a complaint, formulate a

remedy, and end the harassment); Stuart v. Gen. Motors Corp., 217 F.3d 621,

633 (8th Cir. 2000) (holding that no rational jury could conclude that a nine-day

delay to investigate a sexual-harassment complaint was not prompt); Smith v.

Carter BloodCare, No. 02-12-00523-CV, 2014 WL 1257273, at *8 (Tex. App.—

Fort Worth Mar. 27, 2014, no pet.) (concluding that a fifteen-day investigation

before firing harasser was prompt remedial action).

24 Alvarez, 626 F.3d at 421 (quoting Dhyne v. Meiners Thriftway, Inc.,

184 F.3d 983, 988 (8th Cir. 1999)); see Dornhecker v. Malibu Grand Prix Corp.,

828 F.2d 307, 309 (5th Cir. 1987) (“Since the demise of the institution of

dueling, society has seldom provided instantaneous redress for dishonorable

conduct.”). But see TEX. LAB. CODE § 21.142 (requiring “immediate and

appropriate corrective action,” effective September 1, 2021); supra note 15.

25 Cf. Lopez v. Whirlpool Corp., 989 F.3d 656, 664 (8th Cir. 2021)

(holding that when the employee resigned four business days after notifying

the employer, she did not give her employer reasonable time to address her

complaint).

12

to prevent exposing her to ongoing or future harassment and provides

further support for the conclusion that Fossil’s action of firing Brown

one month later was sufficiently prompt as a matter of law.

Harris acknowledged that no one at Fossil terminated her

employment or took any adverse employment action against her, and

she did not plead or allege retaliation or constructive discharge. 26 In the

absence of a constructive discharge, a plaintiff can “make out a statutory

sexual-harassment claim” by “show[ing] that she remained in her

position and endured a hostile work environment.” 27 After her late April

email, however, Harris worked only three more days—on April 28, 28

May 3, and May 4—and she has provided no evidence of a hostile work

environment on those days. And by then, Harris had blocked Brown

from her social-media account—the primary source of harassment.

Depending on the circumstances and seriousness of the alleged

harassment, an employer may need to take intermediate steps to

address the situation while it evaluates a complaint. 29 In this

26 A sexual-harassment claim based on constructive discharge requires

“proof that the employer made the working conditions so intolerable that a

reasonable person would feel compelled to resign.” Waffle House, Inc. v.

Williams, 313 S.W.3d 796, 805 (Tex. 2010).

27 Id. at 805-06.

28 The record does not indicate whether the email in “late April” was

sent before or after April 28.

29 See Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) (describing

the obligation as comprising two parts: “the temporary steps the employer

takes to deal with the situation while it determines whether the complaint is

justified” and “the permanent remedial steps the employer takes once it has

completed its investigation”); Skidmore v. Precision Printing & Packaging,

Inc., 188 F.3d 606, 615 (5th Cir. 1999) (“What is appropriate remedial action

13

procedural posture, however, the onus is on Harris to raise a fact issue

that interim steps were needed for Fossil to satisfy its obligation. 30

Harris did not meet that burden. Not only was there no evidence of any

harassment on April 28, May 3, or May 4, but also the record does not

indicate that Brown worked with Harris on those days.

We therefore hold that Harris did not raise a genuine issue of

material fact that Fossil failed to take prompt remedial action following

her late April email. The court of appeals erred in concluding that

“Fossil took no remedial action after Harris sent the email.” 31

B

We now turn to whether there is evidence that Fossil had actual

or constructive knowledge of the harassment—thereby triggering the

obligation to take prompt remedial action—before the late April email. 32

An employer is put on notice of harassment when “a person within

the organization who has the ‘authority to address the harassment

will necessarily depend on the particular facts of the case—the severity and

persistence of the harassment, and the effectiveness of any initial remedial

steps.” (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 479 (5th Cir. 1989)));

cf. Johnson v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 90

F.4th 449, 456-57 (5th Cir. 2024) (noting that the employer took steps so that

the complainant did not have to interact with her harasser while an

investigation was pending, including by relocating the harasser’s workspace

and instructing the harasser not to have contact with or be around the

complainant); McMillon v. Tex. Dep’t of Ins., 963 S.W.2d 935, 939 (Tex. App.—

Austin 1998, no pet.) (noting that the employer placed the alleged harasser on

administrative leave while the investigation was pending).

30 See TEX. R. CIV. P. 166a(i).

31 682 S.W.3d 896, 905 (Tex. App.—Dallas 2023).

32 We have had no occasion to consider what constitutes actual or

constructive knowledge for purposes of imposing liability on an employer under

14

problem’ or an ‘affirmative duty’ to report harassment learns of the

harassment in question.” 33 A person who has the “authority to address

the harassment problem” will often be in “higher management.” 34 And

an individual has an “affirmative duty” to report harassment, for

Section 21.051 for a hostile-work-environment claim. To argue that it lacked

actual or constructive knowledge, Fossil relies primarily on Title VII case law

from the United States Court of Appeals for the Fifth Circuit. Harris neither

contests Fossil’s use of federal precedent nor proposes an alternative standard.

Accordingly, we consider this issue guided by Fifth Circuit case law. See Tex.

Tech Univ. Health Scis. Ctr.–El Paso v. Niehay, 671 S.W.3d 929, 937 (Tex.

2023) (recognizing that “federal–state synchronization” and “consistency”

between Chapter 21 and federal discrimination law are “desirable, and while

federal authorities do not bind us, they frequently assist us in our independent

obligation to construe Texas law”); San Antonio Water Sys. v. Nicholas, 461

S.W.3d 131, 136-37 (Tex. 2015) (“We look to relevant federal law for guidance

when the relevant provisions of Title VII are analogous.”); supra note 13; see

also Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020) (noting

that our adversarial system generally depends on the parties to frame the

issues for decision).

33 Abbt v. City of Houston, 28 F.4th 601, 607 (5th Cir. 2022) (quoting

Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998)); see Johnson,

90 F.4th at 457 (“[T]he key to whose knowledge may be imputed to the

employer is remedial power: There is no actual knowledge until someone with

authority to address the problem is notified.” (alteration in original) (quoting

Sharp v. City of Houston, 164 F.3d 923, 929-30 (5th Cir. 1999))).

34 Sharp, 164 F.3d at 929 (“A title VII employer has actual knowledge

of harassment that is known to ‘higher management’ or to someone who has

the power to take action to remedy the problem.”); see Kramer v. Wasatch Cnty.

Sheriff’s Off., 743 F.3d 726, 755 (10th Cir. 2014) (“In assessing whether an

employer was negligent in dealing with known harassment, ‘[a]ctual

knowledge will be demonstrable in most cases where the plaintiff has reported

harassment to management-level employees.’” (quoting Adler v. Wal-Mart

Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998))); Mackey v. U.P. Enters., Inc.,

935 S.W.2d 446, 457 (Tex. App.—Tyler 1996, no writ) (“[A]n employee can

demonstrate that her corporate employer knew of the harassment by showing

that she complained to ‘higher management’ of the harassment[.]” (quoting

Bundy v. Jackson, 641 F.2d 934, 943 (D.C. Cir. 1981))).

15

example, when an employer’s policy provides that person with “the

authority to accept harassment complaints” and “place[s] an affirmative

duty on him to pass such information up the chain of command.” 35

The constructive-knowledge inquiry likewise homes in on these

same “appropriate persons” within the organization but asks whether

they “should have known” of the harassment through the exercise of

reasonable care. 36 In effect, for an employer to have constructive

35 Williamson, 148 F.3d at 466 & n.1; see id. at 466 (“When an

organization designates a particular person or persons to receive harassment

complaints, it sends a clear signal that those persons have the authority to

accept notice of harassment problems.”). Other United States Courts of

Appeals have taken similar approaches. See, e.g., Wilson v. Moulison N. Corp.,

639 F.3d 1, 10 (1st Cir. 2011) (“If an employer has designated a particular

individual to accept notice of harassment, notice to that individual ordinarily

will satisfy Title VII’s knowledge requirement vis-à-vis employer liability.”);

Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir. 2009) (imputing knowledge if a

“co-worker has an official or strong de facto duty to act as a conduit to

management for complaints about work conditions” (quoting Torres v. Pisano,

116 F.3d 625, 636-37 (2d Cir. 1997))); Huston v. Procter & Gamble Paper Prods.

Corp., 568 F.3d 100, 107-08 (3d Cir. 2009) (applying agency principles to

impute knowledge when an employee is designated as the “point person” for

receiving harassment complaints “based on the specific mandate from the

employer to respond to and report on sexual harassment”); Breda v. Wolf

Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000) (imputing knowledge if an

employee reports suspected sexual harassment to an individual specifically

designated by the company policy to receive harassment complaints); Young v.

Bayer Corp., 123 F.3d 672, 675 (7th Cir. 1997) (focusing on, for the purpose of

imputing knowledge, “whether the information comes to the attention of

someone who ought by specification of his duties or, failing that, general norms

of management to do something about it, either directly or by referring the

matter to some other corporate employee”).

36 Arredondo v. Elwood Staffing Servs., Inc., 81 F.4th 419, 435 (5th Cir.

2023) (“Ultimately, a company can only be said to have constructive knowledge

of a hostile work environment where ‘the appropriate persons within’ the

company, meaning someone with ‘remedial power over the harasser[,]’ ‘knew

or should have known’ about the situation.” (quoting Sharp, 164 F.3d at 930)).

16

knowledge, the harassment must have been “so open and pervasive”

that the appropriate persons should have known of it had the employer

“opened its corporate eyes.” 37 However, “[a] holding that an employer

had constructive knowledge will be less likely if it had in place a

procedure by which employees could report instances of harassment.” 38

We cannot conclude there is evidence that any “appropriate

persons” within Fossil knew or should have known about Brown’s

harassing conduct before late April. Fossil’s employment policy

designates the employee’s manager (or another member of management

if the employee is uncomfortable contacting her manager) and members

of its human resources department as the individuals to receive

harassment complaints. The policy also places an affirmative duty on

managers and supervisors who suspect harassment is occurring, receive

a complaint, or witness harassing behavior “to report such suspected

harassment to Human Resources.” But here, the store manager

Zaborowicz learned about Brown’s harassing conduct from Third Key

employees only at the end of April and beginning of May. Harris also

admitted she did not tell anyone in management about the harassment

until after she resigned in early May and does not claim anyone in

37 Id. (quoting Sharp, 164 F.3d at 930); Sharp, 164 F.3d at 930 (“Of

course, harassment by definition always will be open and pervasive as to some

group, if only as to the harasser and victim. But that is not enough. To impute

constructive knowledge to the employer, we must find constructive knowledge

on the part of someone whose actual knowledge also would impute knowledge

to the employer.”).

38 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 656 (5th Cir. 2012).

17

human resources knew about the harassment before the late April

email.

There is some evidence that certain Fossil employees knew about

Brown’s harassing conduct before late April, including K.K., two other

sales associates, and at least one Third Key employee. But Harris did

not adduce evidence that any of these individuals were authorized to

address the harassment or were managers or supervisors that had an

affirmative duty under Fossil’s employment policy to receive

harassment complaints and report them up the chain of command. And

Fossil submitted evidence to the contrary, including (1) corporate job

descriptions for Third Key employees and sales associates, neither of

which described or imposed any such authority or duty for those roles,

and (2) an affidavit from its human resources manager, who averred

that a Third Key employee “has no supervisory responsibility over any

employees.” 39

In sum, there is no evidence to raise a fact issue that any

“appropriate persons” within Fossil knew about the harassing conduct

before late April or that Fossil would have known of the harassment,

which mostly occurred off-site through social media, had it opened its

corporate eyes.

Harris also argues that Fossil should have known about Brown’s

39

harassing conduct because he was fired for sexual harassment by his previous

employer, Old Navy. See supra note 8. In his deposition, Brown admitted he

would have informed Fossil about the reasons for his separation from Old Navy

if he had been asked in his job interview. But Fossil presented evidence that

when Brown interviewed, he represented in his resume that he was currently

employed by Old Navy. Fossil therefore had no reason to ask why he had left

that job. And Harris presented no other evidence that Fossil had reason to

know about Brown’s sexually harassing conduct at Old Navy.

18

* * *

Our holding today does not minimize the seriousness of Brown’s

misconduct in sending unwanted sexually explicit social-media content

or any anguish Harris may have suffered. All agree Brown’s harassing

conduct was reprehensible. But Harris failed to adduce evidence to hold

her employer, Fossil, liable for Brown’s actions. We therefore reverse

the court of appeals’ judgment and render judgment reinstating the trial

court’s take-nothing judgment.

John P. Devine

Justice

OPINION DELIVERED: June 14, 2024

19