Squire v. USAA Life Insurance

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

___________________

No. 96-50424
Summary Calendar
___________________

CAROL A. SQUIRE
Plaintiff-Appellant,

versus

USAA LIFE INSURANCE COMPANY
Defendant-Appellee.

--------------------
Appeal from the United States District Court
for the Western District of Texas
--------------------
January 24, 1997

Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.*

GARWOOD, Circuit Judge:

Carol A. Squire (Squire) appeals the district court’s grant of

summary judgment to employer USAA Life Insurance Company (USAA) in

her sexual harassment lawsuit. We affirm.

Facts and Proceedings Below

Squire was at all times pertinent employed as a reinsurance

specialist in USAA’s Underwriting Systems and Support Department in

San Antonio. In July of 1994 Lew Lux (Lux) was transferred into

*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Squire’s department.1 Although Lux, as Squire’s immediate

supervisor, was responsible for preparing a performance appraisal

which could affect Squire’s salary, there is no evidence that he

exercised any authority to hire, fire, or discipline any USAA

employees.

Soon after Lux’s arrival in Squire’s department, he began

making salacious comments about Squire’s appearance and dress. Lux

also inquired about Squire’s personal life and expressed a desire

to ask her out on a date. Lux’s behavior included insulting

comments about the appearance of other women and frank references

to his own sexual desires.

This conduct occurred on occasion in the presence of Squire’s

co-workers. Squire avers that “Bessie” and Laura Calderon, whose

desks were adjacent to Squire’s, often overheard Lux’s lewd

conversations with Squire. Squire also claims that at “unit

meetings” Lux, who ran the meetings, would ask her whom she was

dating in front of her co-workers. Despite the fact that Lux

allegedly harassed Squire on a daily basis and at times in the

presence of her co-workers, Squire did not complain about or report

1
Deposition testimony reveals that prior to this transfer Lux
was investigated by USAA’s Employee Relations department for having
made lewd remarks to female employees in a different department of
USAA. Due to a supposed improvement in Lux’s behavior, however,
the results of this investigation were never formalized and no
formal disciplinary action was taken. Lux was nonetheless
interviewed by Marva Smith of Employee Relations who, despite Lux’s
denial of any wrongdoing, counseled him regarding the
inappropriateness of bawdy language or behavior in the workplace
and USAA’s policy proscribing sexual harassment.

2
Lux’s behavior to anyone in management prior to November 15, 1994.

On November 15, 1994, Squire claims that Lux encountered her

in the hallway and told her “I’m married and I lay next to it every

night, but I think you probably get it more than I do.” This

comment was followed by several minutes of conversation regarding

the inadequacy of Lux’s sexual relationship with his wife.

Immediately after this encounter Squire approached Mike Belko, a

USAA manager, informed him of Lux’s behavior towards her, and told

him that she felt threatened by the escalating nature of Lux’s

harassment. Belko recommended that Squire report Lux’s conduct to

the Human Relations department immediately; Squire, however,

decided against taking any immediate action, and asked Belko to

remain silent until she reached a decision on how she would

proceed.

At around 3:00 p.m. on November 17, 1994, the underwriting

department employees gathered for an office turkey raffle, a

fundraising exercise. Squire was in charge of the fundraiser and

had collected the contributions for the raffle. Lux’s name was

selected in the first drawing, but Ray Dinstel, Vice President of

Life/Health Underwriting and System Support and Lux’s immediate

supervisor, told the drawer to replace Lux’s name and draw again

because Lux was not present. At approximately 4:45 p.m. Lux

returned to the office area upset that he had not received the

raffle prize. He approached Squire, who had collected the

contributions, and demanded his money ($10) back. After receiving

3
his money, Lux initially left Squire’s work area; Lux, however,

soon returned, placed the money down the front of Squire’s dress,

and walked away. Prior to this incident, Lux had never committed

any inappropriate touching of Squire (or anyone else).

At this time USAA Director Warren Camarano came upon the

scene. Seeing Squire in tears, he attempted without success to

detain Lux. Later that day Squire received a phone call from

Dinstel, then at a business meeting in Austin, who told her that he

had been informed about the incident and wished to meet with her

and discuss the matter the next morning.

At 8:00 a.m. on November 18, 1994, Squire met with Dinstel and

representatives of Employee Relations, including Lux’s former

supervisor; at this meeting she related the entirety of Lux’s

treatment of her over the preceding months. Following this

interview, Squire gave two written statements at the Employee

Relations office, one regarding the November 17 incident and the

other concerning Lux’s previous behavior towards her. Craig Vrazel

of Employee Relations told Squire that Lux was being placed on

administrative leave and that arrangements were being made to

deactivate Lux’s identification card and deny him access to the

USAA office building. Vrazel also provided Squire and her family

with security from Pinkerton Security and arranged for Squire to

see a psychiatrist, Dr. Theresa Valls, that afternoon. After

seeing Valls, Squire returned to her office and left a note for

Dinstel stating that she would not be in on Monday or Tuesday and

4
that she intended to start her vacation, as planned, on Wednesday,

November 23, 1994.

Employee Relations began an immediate investigation into Lux’s

conduct, interviewing Lux and obtaining a statement from Camarano

the day after the raffle incident. On Monday, November 21, 1994,

Employee Relations took a written statement from Lux and

interviewed Squire’s co-workers. On Tuesday, November 22, 1994,

Belko provided Employee Relations with a statement concerning his

November 15 meeting with Squire. On Wednesday, November 23, 1994,

Dinstel recommended that Lux’s employment be terminated. The

following Thursday (Thanksgiving) and Friday were holidays for USAA

employees; on Monday, November 28, 1994, Dinstel announced that

Lux’s employment had been terminated by USAA.

On August 9, 1995, Squire, still employed by USAA in its San

Antonio Underwriting Systems and Support Department, filed this

suit against USAA under Title VII, 42 U.S.C. § 2000e et seq., and

Texas common law negligence. On April 11, 1996, five days after

the April 6, 1996, close of the extended discovery period, USAA

moved for summary judgment. On May 8, 1996, the district court

entered a memorandum opinion and order granting USAA’s motion.

Squire timely appeals. We affirm.

Discussion

“[T]he party moving for summary judgment must demonstrate the

absence of a genuine issue of material fact, but need not negate

5
the elements of the nonmovant’s case.” Little v. Liquid Air Corp.,

37 F.3d 1069, 1075 (5th Cir. 1994) (emphasis in original)

(citations omitted) (internal quotation marks omitted). If the

movant makes such a showing, the burden then shifts to the

nonmovant to go beyond the pleadings and designate, by competent

summary judgment evidence, specific facts which demonstrate genuine

triable issues. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553-

2554 (1986). The nonmovant’s burden “is not satisfied with some

metaphysical doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertions, or by only a scintilla

of evidence.” Little, 37 F.3d at 1075 (citations omitted)

(internal quotation marks omitted). In reviewing a district

court’s grant of summary judgment, we consider the record de novo.

Wittorf v. Shell Oil Co., 37 F.3d 1151, 1154 (5th Cir. 1994).

Squire seeks damages from USAA for being subjected to a

hostile work environment created by Lux’s abusive behavior.2 See

Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993). On appeal

Squire stresses that her lawsuit targets the period prior to

November 17, 1994, i.e., the day of the “turkey raffle” incident.

She bases USAA’s liability upon the contention that USAA should

have discovered Lux’s harassment sooner, sparing her the

embarrassment and humiliation which ultimately ensued.

2
Thus, we do not deal with any instance of quid pro quo
harassment in this case. See Jones v. Flagship Intern., 793 F.2d
714, 721-722 (5th Cir. 1986), cert. denied, 107 S.Ct. 952 (1987).

6
 “To state a claim under Title VII for sex discrimination based

on a theory of a hostile work environment, a plaintiff must prove:

(1) that she belongs to a protected class; (2) that she was subject

to unwelcome harassment; (3) that the harassment was based on sex;

(4) that the harassment affected a term, condition or privilege of

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

about the harassment and failed to take prompt remedial action.”

Waymire v. Harris County, Tex., 86 F.3d 424, 428 (5th Cir. 1996)

(citations omitted) (emphasis added). Squire does not contend that

Lux, given the limited scope of his supervisory authority, was the

sort of managerial employee whose conduct should be directly or per

se imputed to USAA. See Long v. Eastfield College, 88 F.3d 300,

306-307 (5th Cir. 1996); Grant v. Lone Star Co., 21 F.3d 649, 653

(5th Cir.), cert. denied, 115 S.Ct. 574 (1994); Deal v. State Farm

County Mutual Ins. Co. of Texas, 5 F.3d 117, 119 (5th Cir. 1993);

Harvey v. Blake, 913 F.2d 226, 227-228 (5th Cir. 1990). The

district court granted USAA summary judgment because Squire had

failed to present any competent evidence regarding the fifth prong,

i.e., actual or constructive knowledge coupled with a failure to

respond to the harassment promptly and adequately. We consider in

turn Squire’s contentions that the district court erred in making

this determination.

Squire argues first that the “knew or should have known”

standard applied by the district court was an improper legal

7
standard. Squire relies upon the Equal Employment Opportunity

Commission’s self-governing regulation, found at 29 C.F.R. §

1604.11(c), which states in pertinent part that “an employer ... is

responsible for its acts and those of its agents and supervisory

employees with respect to sexual harassment regardless of whether

the specific acts complained of were authorized or even forbidden

by the employer and regardless of whether the employer knew or

should have known of their occurrence.” Squire contends that under

this authority she is relieved of having to show that USAA enjoyed

actual or constructive knowledge of Lux’s harassment.3

Because Congress gave the EEOC no authority to promulgate

rules or regulations under Title VII,4 we must give only a limited

deference to EEOC rules and regulations. E.E.O.C. v. Arabian

American Oil Co., 111 S.Ct. 1227, 1235 (1991); Greenlees v.

Eidenmuller Enterprises, Inc., 32 F.3d 197, 200 (5th Cir. 1994).

In determining the extent of the deference owed, we look to “the

3
The following paragraph of this regulation, part 1604.11(d),
posits a constructive knowledge threshold for employer liability
when the complained of sexual harassment occurs solely among
“fellow employees.” Thus, the only real disagreement between our
standard of employer liability and that of the EEOC involves lower-
ranking managers and supervisors without any meaningful authority
to hire, fire, or discipline. See Note 3, supra.
4
Section 1604.11 was promulgated under the authority of 5
U.S.C. § 7301, which formalizes the President’s power to “prescribe
regulations for the conduct of employees in the executive branch.”
Thus, section 1604.11 is at best a directive to Commission members
regarding the guidelines they should use in considering Title VII
matters brought before the Commission.

8
thoroughness evident in [the Commission’s] considerations, the

validity of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to

persuade, if lacking power to control.” E.E.O.C., 111 S.Ct. at

1235, quoting Skidmore v. Swift & Co., 65 S.Ct. 161, 164 (1944).

In addition, “we will not defer to the EEOC’s construction of its

authority when the plain language of the statute and precedent

squarely contradict the position advanced.” Greenlees, 32 F.3d at

200.

In Meritor Sav. Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986),

the EEOC, as amicus curiae, argued that in “hostile work

environment” cases when an employer has in place a system for

reporting on-the-job sexual harassment (as USAA did) an actual

knowledge standard should govern the imposition of employer

liability. Vinson, 106 S.Ct. at 2407-2408. The Supreme Court

pointed out the inconsistency of this proffered rule and section

1604.11(c)’s strict liability standard, but declined to create a

standard for liability in such cases. Id. at 2408. Rather, the

Supreme Court pretermitted the issue, stating only that, in

accordance with the statutory language, “Congress wanted courts to

look to agency principles for guidance in this area.” Id. See

also Hall v. Gus Constr. Co., 842 F.2d 1010, 1015 (8th Cir. 1988)

(“42 U.S.C. § 2000e(b), suggests that Congress did not intend to

hold employers strictly liable for the acts of their supervisors”).

9
 Our precedent (and the actual or constructive knowledge

standard) has evolved out of an attempt to comply with the mandate

that “agency princples” be consulted to fashion rules of employer

liability in hostile workplace lawsuits. The EEOC regulation, on

the other hand, predates our precedent but provides for strict

liability. Furthermore, the EEOC’s willingness to broach

alternative standards to the Supreme Court in Vinson suggests that

the Commission may not believe that the section 1604.11(c) standard

should govern in hostile work environment cases. Finally, we note

that a large majority of circuits apply the actual or constructive

notice standard to hostile workplace claims under Title VII.

Spicer v. Commonwealth of Virginia, Dept. of Corrections, 66 F.3d

705, 710 (4th Cir. 1995) (en banc); Murray v. New York University

College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995); Nichols v.

Frank, 42 F.3d 503, 508 (9th Cir. 1994); Pierce v. Commonwealth

Life Ins. Co., 40 F.3d 796, 803-804 (6th Cir. 1994); Baker v.

Weyerhaeuser Co., 903 F.2d 1342, 1345-1346 (10th Cir. 1990); Vance

v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1512-1513 (11th

Cir. 1989); Hall, 842 F.2d at 1015-1016. The cited EEOC

regulation, which predates this Circuit’s precedents, provides no

basis for this panel to depart from this Circuit’s established

Title VII law. The district court applied the correct legal

standard.

Squire next argues that USAA’s knowledge that a prior

10
complaint of harassment had previously been made against Lux, see

note 1, supra, created a duty on USAA’s part to be extra vigilant

against future harassment by Lux. Squire argues that she was the

victim of USAA’s breach of that duty and that this fact should

count towards making up, at least in part, her prima facie case.

Squire relies upon our prior decision in Cortes v. Maxus

Exploration Co., 977 F.2d 195 (5th Cir. 1992), for the proposition

that an employer should take remedial action to eliminate a hostile

work environment as soon as that employer has knowledge of previous

sexually harassing conduct which may be repeated if the offender is

given the opportunity.

We find these arguments unconvincing. In Cortes, the

plaintiff complained persistently about harassment by one Acero,

harassment that continued until she was transferred to another

department. Due to a reorganization of its business, however, the

plaintiff’s employer subsequently decided to transfer her back into

a situation where Acero would be her immediate supervisor. We

found that “[e]ven in light of the strong evidence that Acero had

sexually harassed Cortes when she was under his supervision and

that when given the opportunity, he had continued to do so even

after she was transferred out of his department, [the employer]

transferred Cortes to this sexually abusive department.” Cortes,

977 F.2d at 199.

The facts of Cortes do not support the proposition broached by

11
Squire. Rather, they demonstrate only actual notice to an employer

regarding harassment of the same employee over an extended period

of time. Contrary to Squire’s urgings, nothing in our

jurisprudence suggests the existence of the “duty” she proposes,

and we decline Squire’s invitation to create one under the facts of

this case. The prior complaint against Lux was resolved amicably

and without formal proceedings because of a perceived change in

Lux’s outlook and behavior. In addition, Squire had no knowledge

of the prior complaint against Lux until after this lawsuit was

initiated. Under these circumstances, the company was justified in

believing that its action was sufficiently calculated to end Lux’s

harassing behavior and had no reason to consider itself “on notice”

that Lux might harass someone else in the future. Murray, 57 F.3d

at 250; Baker, 903 F.2d at 1345. See also Jones, 793 F.2d at 721

n.7 (evidence that other female employees reported being harassed

by company vice president “does not bear on Jones’ individual claim

of sexual harassment in the absence of evidence that such incidents

affected Jones’ psychological well-being”). Squire’s argument

lacks merit.

We next consider whether the evidence Squire adduced could

allow a reasonable juror to find that USAA knew or should have

known of Lux’s harassment of her sufficiently prior to the November

17, 1994, incident. As we have previously noted, “the type and

extent of notice necessary to impose liability on an employer under

12
Title VII are the subject of some uncertainty.” Farpella-Crosby v.

Horizon Health Care, 97 F.3d 803, 807 (5th Cir. 1996), citing

Waltman v. International Paper Co., 875 F.2d 468, 478 (5th Cir.

1989). Whatever uncertainty may attend our analysis, it is clear

that a showing of constructive knowledge for Title VII purposes

must be premised upon some fact or set of facts which demonstrate

that “higher management” had a reasonable opportunity to be put on

notice of the ongoing harassment. Nash v. Electrospace System,

Inc., 9 F.3d 401, 404 (5th Cir. 1993).

In almost every Title VII case which this Circuit has decided,

the plaintiff has complained at least once, and often numerous

times, to the responsible employer authority about the harassment.

See, e.g., Farpella-Crosby, 97 F.3d at 807 (plaintiff complained to

human resource director “frequently”); Nash, 9 F.3d at 403

(plaintiff complained to personnel department); Cortes, 977 F.2d

195, 198 (plaintiff repeatedly complained to human resources

manager); Waltman, 875 F.2d at 478 (plaintiff complained three

times to various supervisors and managers); Jones, 793 F.2d at 717

(plaintiff complained to company executive). We often find

constructive, if not actual, notice in such situations because,

assuming that the company’s attempts to comply with Title VII are

not a sham, a complaint in such a corporate “pipeline” often has a

reasonable chance of finding its way to someone with the authority

to discipline the harasser and stop the harassment. Farpella-

13
Crosby, 97 F.3d at 807; Cortes, 977 F.2d at 198; Waltman, 875 F.2d

at 478. Even where the plaintiff has complained to lower level

managers, however, a finding of constructive notice may be

inappropriate where it cannot reasonably be inferred that the

complaint should have ultimately come to the attention of the

company hierarchy. See Kilgore v. Thompson & Brock Management, 93

F.3d 752, 754 (11th Cir. 1996) (complaint to manager of Pizza Hut

did not constitute a complaint to “higher management” of employer

management company); Andrade, 88 F.3d at 262 (complaint letter not

admissible without a foundation demonstrating executive officer of

employer read it). Cf. Canutillo Independent School Dist. v.

Leija, 1996 WL 686116, *8-10, No. 95-50791 (5th Cir. Nov. 27, 1996)

(complaints made by student to classroom teacher not imputable to

school administration);

In the absence of any prior complaint, a plaintiff “can

demonstrate constructive notice by showing the pervasiveness of the

harassment, which gives rise to the inference of knowledge or

constructive knowledge.” Waltman, 875 F.2d at 478 (citations

omitted) (internal quotation marks omitted). See also Spicer, 66

F.3d at 710; Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d

900, 904 (11th Cir. 1988). The “pervasiveness” analysis involved

here is distinct from that involved in determining the existence of

a “hostile work environment”; the latter analysis considers the

breadth of the harassing conduct to glean its effect on the

14
plaintiff’s work environment, while the former inquiry examines

whether the widespread nature of the harassment made it more likely

to be noticed by the employer.5 In considering whether the conduct

was pervasive enough to put the employer on notice, constructive

knowledge can typically be premised upon incidents that are

witnessed by high-ranking supervisory employees because the

knowledge of such individuals is more readily imputed to the

employer.6 See Splunge v. Shoney’s, Inc., 97 F.3d 488, 490 (11th

Cir. 1996); Andrade v. Mayfair Management, Inc., 88 F.3d 258, 262

(4th Cir. 1996); Baker, 903 F.2d at 1345. See also Waymire, 86

F.3d at 428 (incident occurred in front of duty sergeant, who

reported it to higher level police personnel). Whether the

harassment occurs in front of co-workers or lower level supervisors

is also a factor to be considered, although its probative weight

depends, again, on the probability that the observers will relate

what they witnessed to someone in higher management. Splunge, 97

F.3d at 490; Nash, 9 F.3d at 404. In addition, the proximity of

higher management to the locations where the harassment occurred

5
The latter does not necessarily embrace the former, for if it
did there would, in effect, be strict liability for hostile
environment sexual harassment.
6
The instant case is a perfect example; Lux’s outrageous
behavior on November 17 was observed, at least in part, by
management staff. That same day a corporate executive, Dinstel,
was notified, Lux was suspended and barred from entering the
building, and an investigation was begun. Lux was terminated just
over one week later.

15
may be sufficient, since juxtaposition of the two increases the

likelihood that harassing incidents were observed by members of the

company hierarchy. Kotcher, 957 F.2d at 64. Finally, tangible

manifestations of the harassment, such as graffiti or widely

circulated documents or recordings, may increase the opportunity

for higher management to learn of the harassing behavior. See

Waltman, 875 F.2d at 478. While other factors may be relevant to

the inquiry, the ultimate question remains whether the totality of

the circumstances are such that it could reasonably be found that

USAA should have been aware of Lux’s alleged harassment of Squire

sufficiently before November 17, 1994. Vance, 863 F.2d at 1512-

1513; Jones, 793 F.2d at 720 (citation omitted).

Applying these principles to the record before us, we conclude

that Squire has not made out a prima facie case of USAA’s actual or

constructive knowledge. While Squire’s deposition recounts that

many of the harassing incidents occurred in front of “Bessie” and

Laura Calderon, it does not relate with any specificity the content

of Lux’s comments on those particular occasions nor suggest that

either of Squire’s co-workers would have been inclined to complain

to higher management.7 While Squire also asserts that Lux asked

her questions about her dating life at “unit meetings,” there is no

7
Affidavits or deposition testimony from either “Bessie” or
Calderon might have been helpful in this instance, indicating how
widespread knowledge of the harassment was and whether they
personally might have relayed it to higher management. Such
evidence is, however, conspicuously absent from the record.

16
evidence regarding who attended such meetings and no showing of the

effect of these comments on the meeting attendees. Additionally,

there is no evidence that any manager ever witnessed Lux’s behavior

and no evidence regarding the frequency with which higher

management visited Squire’s workplace.8 USAA had in place a system

for reporting sexual harassment which Squire knew about but

declined to utilize. The limited facts adduced by Squire, read in

the light most favorable to her, simply do not suffice to

reasonably support a finding that in the absence of a complaint the

higher management of USAA should have known of Lux’s harassment of

Squire prior to November 15, 1994. The district court did not err

by dismissing Squire’s hostile workplace environment claim.

In a related vein, Squire contends that the period between the

November 17 incident and Lux’s termination on November 28, 1994,

was overly drawn out, causing her additional mental anguish, and

thus did not comprise a “prompt remedial response” by USAA. We

find this contention insubstantial. During this period, Squire

never had any contact whatever with, or even saw, Lux. As soon as

Lux’s behavior became known to it, the higher management of USAA

immediately launched an investigation into the harassment of

8
Belko, of course, was informed by Squire on November 15, 1994,
of Lux’s conduct. Belko vowed to remain temporarily silent,
however, out of respect for Squire’s express request that he do so
until she could consider the matter further. Squire does not
contend that her voluntary election to hold her complaint in
abeyance should be considered in determining whether the company
hierarchy had notice of the harassment.

17
Squire. Compare Spicer, 66 F.3d at 710. The investigation of Lux

took only four working days to complete, a paradigm of promptness

under the circumstances. Waymire, 86 F.3d at 429. USAA in this

case acted quickly and efficiently in dealing with Lux’s sexual

harassment.9 Carmon v. Lubrizol Corp., 17 F.3d 791, 794-795 (5th

Cir. 1994).

Finally, Squire appeals the district court’s finding that her

state law tort claims are precluded by the Texas workers’

compensation exclusive remedy provision barring negligence actions

against employers, like USAA, subject to the Workers’ Compensation

Act. Tex. Lab. Code Ann. § 408.001. Squire contends that these

claims, although pleaded as negligence, are in fact allegations of

intentional torts which are not subject to the exclusivity

provision. See Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex.

1985). Squire’s argument is disingenuous. Paragraph 14 of

Squire’s complaint charges USAA with acting “in a negligent manner”

in Lux’s hiring and employment, and avers further that “each

negligent act or omission” by USAA caused Squire’s injuries. Under

9
In particular we find no merit to Squire’s contention that the
company’s retention of Pinkerton security to guard her and her
family pending the outcome of the investigation unduly frightened
her. The company was placed in a position where it could either
not provide her security, provide her security but not tell her
about it, or proceed as it did. The first course could conceivably
have placed Squire in real danger, while the second might have
frightened her further had she observed strange men surveilling her
premises. The company wisely proceeded with the third course of
action; any fear which ensued on Squire’s part was not the fault of
the company.

18
Texas law, “[t]he fundamental difference between negligent injury,

or even grossly negligent injury, and intentional injury is the

specific intent to inflict injury.” Prescott v. CSPH, Inc., 878

S.W.2d 692, 695 (Tex.App.——Amarillo 1994) (citations omitted).

Under Federal Rule of Civil Procedure 9(b), intent or other

conditions of the mind must be averred in the pleadings. Compare

Castleberry v. Goolsby Building Corp., 617 S.W.2d 665, 666 (Tex.

1981) (under Texas rules of pleading allegations of “gross, wanton,

and willful negligence” are “insufficient to give the opposing

attorney fair notice that this cause of action was for an

‘intentional injury’”). Squire failed to properly plead an

intentional tort and did not move in the district court to amend

those pleadings; accordingly, her state law claims are barred by

the workers’ compensation exclusivity provision. In any event, the

summary judgment evidence is wholly insufficient to sustain a

finding that USAA had any intent to inflict injury on Squire.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

19