Eric Cox v. Waste Management of Texas, Inc. and Tony Wadley

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-446-CV

ERIC COX APPELLANT

V.

WASTE MANAGEMENT OF APPELLEES
TEXAS, INC. AND TONY WADLEY

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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

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OPINION

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Introduction

In nine issues, appellant Eric Cox appeals the trial court’s orders granting

the separate summary judgment motions of appellees Waste Management of

Texas, Inc. (Waste Management) and Tony Wadley. We affirm.
 Background Facts

Waste Management hired Cox as a waste truck driver in July 2004.

Wadley, a route manager, was Cox’s immediate supervisor, and Wadley and

Cox became friends. During that friendship, Cox often called Wadley on

Wadley’s business cell phone to discuss both personal and work-related

matters. In the latter part of 2005, however, Wadley began aggressively

seeking a closer relationship with Cox that Cox believed to be romantic and

sexual in nature.

For example, according to Cox, Wadley began asking Cox to stay with

him on weekends, come over to his house to watch movies, and go on fishing

trips with him. He constantly asked Cox, “W hen are you going to give me

some time?” He told Cox that he and Waste Management would take care of

Cox and his family. Wadley sent Cox text messages saying things such as “Do

u know who loves u,” “Just know who loves you,” and “I will always be here

for you Eric.”

Cox said that “for a long time [he] thought [Wadley] was just being

friendly and then it got worse and worse until [Cox] had enough.”

Wadley never tried to kiss Cox or touch him inappropriately, and he never

directly told Cox that he had any sexual intentions, but Cox inferred from

2
Wadley’s statements and actions that Wadley wanted to have a romantic

relationship.1

Cox did not return interest in such an apparently romantic relationship,

and he told Wadley to stop making such communications. When Cox told

Wadley that he was happy with his current relationship situation, Wadley told

Cox that such a statement made him angry and made him want to hurt Cox.

Cox told W adley to leave him alone and that he would transfer his work

location to avoid Wadley, but Wadley told Cox three or four times that he

would find Cox regardless of where Cox went. When Cox complained to

Wadley about the communications, Wadley would “stop for a little bit and then

he would start back up.”

On January 2, 2006, Cox finally determined that he was being sexually

harassed when he got a text message from Wadley in which Wadley told Cox

that he loved him.2 Cox became angry and called Charles (“Moose”) Tyler,

Wadley’s supervisor, to express Cox’s fear about Wadley’s behavior.

According to Tyler, Cox was vague during the call about the nature of his

complaint and said that he “didn’t want to get anybody in trouble,” but Tyler

1
… Wadley has offered nonromantic, nonsexual explanations for some of
his statements to Cox.
2
… Cox said that he did not feel harassed until the “very end” because it
was “really hard to decide” when Wadley “went too far.”

3
was still concerned, and he believed that Cox’s complaints should be

investigated.

The next day, Cox felt too much fear to return to work, so upon his own

suggestion, he met Tyler and Albert Godoy, Waste Management’s human

resources manager for the northern Texas area and its primary sexual

harassment investigator, for about forty-five minutes at an IHOP restaurant.

During that meeting, Godoy took notes as Cox told them that Wadley was “real

persistent” and that he “wouldn’t leave [Cox] alone.” Cox also showed them

the text messages that Wadley had sent to Cox’s phone and wrote a complaint

about Wadley’s behavior. The parties dispute whether Cox displayed text

messages that he had sent to Wadley.

Although Godoy wrote down the text messages that Cox had displayed,

Cox did not believe that Tyler and Godoy took his complaints seriously.

Godoy asked Cox what remedy Cox wanted regarding Wadley’s conduct, and

Cox allegedly “refused to offer any suggestions.” Tyler thought that the text

messages that Cox had showed him were inappropriate and that they

potentially had a romantic tone.

After Tyler and Godoy’s meeting with Cox at the IHOP, they went to talk

to Houston Chambliss, a Waste Management district manager (and Tyler’s

supervisor), about Cox’s complaints and his desire to have all communication

4
from Wadley stopped. Chambliss was shocked about the messages that

Wadley had sent to Cox. Chambliss and Godoy then met with Wadley to

discuss Cox’s allegations. Chambliss says that Wadley claimed that he was

trying to be a “big brother” to Cox and also claimed that Cox had previously

made sexual gestures to him. Because Cox was allegedly “vague about his

complaints” and because Wadley told Godoy that Wadley’s text messages to

Cox were a result of ongoing communication between them, Godoy formed an

initial opinion that the conduct between Wadley and Cox could have been

consensual.

On the same day that he met with Wadley individually, Chambliss

arranged for Cox to participate in a joint meeting with Wadley, although

according to Cox, Cox told them that he did not want to see Wadley because

he was uncomfortable around him and feared “what [Wadley] might do.” 3

Wadley, Cox, Tyler, Godoy, and Chambliss participated in that thirty-minute

meeting. Godoy thought that the joint meeting was the “best way [to] find out

the facts.”

During the joint meeting, Chambliss says that Cox only would repeat that

he, Cox, was “F’d up” or say something like, “Come on, Tony. Tell the truth.”

3
… Chambliss says that Cox agreed to the joint meeting.

5
Wadley allegedly apologized and said that he was trying to be a father figure to

Cox and that he thought Cox was gay.4 Cox believes that the Waste

Management officials sided with Wadley during the meeting. Godoy says that

the joint meeting made Cox’s allegations “cloudier” and that the individuals at

the meeting did not clarify any specific facts.

After the joint meeting, Cox made about twenty calls to various mental

health offices. Godoy referred Cox to Waste Management’s employee

assistance program, and Waste Management allowed Cox to take paid short-

term disability leave starting in January 2006. Cox saw a psychiatrist for his

mental health related to Wadley’s alleged sexual harassment and took some

prescription medicine for his depression, anxiety, and sleeplessness.

In the middle of January, Waste Management suspended Wadley for two

weeks without pay because the company believed that Wadley “exercised poor

judgment in becoming too close to a subordinate.” Waste Management also

gave a written reprimand to Wadley and placed the reprimand in his

employment file. The reprimand notified Wadley that his text messages to Cox

“created a perception of harassment . . ., which is a violation of the Company’s

Harassment Policy.” Even after his suspension ended, Wadley only appeared

4
… Wadley, who admitted in his deposition that he is homosexual, says
that he was embarrassed and humiliated by the meeting with Cox.

6
at work for Waste Management between two days to two weeks until he

voluntarily resigned his employment on May 18, 2006. Wadley never

contacted Cox again after the meeting on January 3, 2006.

Despite suspending Wadley, Waste Management did not conclude that

actual sexual harassment had occurred. And Godoy did not report to Cox the

result of Godoy’s investigation or the disciplinary action against Wadley

because Cox never returned to work.

Godoy called Cox at some point during Cox’s leave to ask whether Cox

wanted to return to work. Godoy says that he told Cox that if Cox wanted to

return to work, there were “various options open to him” and that he

“guarantee[d] [Cox] that he would not be around [Wadley].” But Cox says that

the only thing Waste Management offered him at that time was a transfer to

its Lewisville office. He does not acknowledge that Waste Management also

offered to transfer Wadley. After speaking with Cox, Godoy received a call

from Cox’s mental health provider informing him “not to pressure [Cox] to

return to work.”

Godoy did not make any official written report about Cox’s allegations,

although he testified that he constantly communicated with his supervisors

about the allegations and his own investigation. Godoy said that he concluded

his investigation by taking corrective action against Wadley and by offering Cox

7
“whatever position he would possibly want to work or whatever location he

would possibly want to work.” But he also said that he left the investigation

open to the extent that if more information became available, further action

against Wadley could have been taken. He explained that he did not conclude

that Cox had been sexually harassed because his relationship with Wadley “was

one apparently where there was quite a bit of [communication] outside of work

hours,” so he believed the relationship to be consensual. 5 Cox is the only

employee to have complained about Wadley.

Cox’s counsel, Susan Hutchison, sent Godoy a letter on May 1, 2006,

stating that Cox considered himself constructively discharged from employment

because Waste Management gave an “ineffective, inappropriate, retaliatory[,]

and terrible response” to Cox’s harassment allegation and no “reasonable

person would remain employed” under those conditions. Waste Management’s

counsel, Janne Foster, responded to Hutchison’s letter on May 5, 2006.

Foster’s letter recited that Waste Management had previously offered to allow

Cox to transfer from the Fort Worth Waste Management district to another

5
… Chambliss also did not conclude that Cox had been sexually harassed
because of Cox’s ongoing communication with Wadley; he characterized Cox’s
complaint as harassment, but not sexual harassment. However, he admitted
that Wadley still “did not perform as a manager accordingly.” Tyler, on the
other hand, concluded that W adley had sexually harassed Cox based on the
text messages Wadley and Cox exchanged.

8
district or remain in the Fort Worth district, in which case Waste Management

would remove Wadley from that district. In either case, Foster’s letter assured

Cox that he “would not be required to work with [Wadley].” The letter stated,

“These options remain available . . . . Naturally he is free to resign if he

wishes, but he should clearly understand the options available to him.” 6

On May 9, 2006, Hutchison sent another letter to Foster that reiterated

Hutchison’s belief that Cox had been constructively discharged, stating, “Mr.

Cox is unable to return to work at Waste Management and will not do so.

What you have stated in your letter is the epitome of ‘too little, too late.’”

Wadley voluntarily resigned from Waste Management’s employment on

May 18, 2006, more than four months after Cox’s initial complaint.

Cox’s employment with Waste Management officially ended on May 19, 2006.7

6
… During his deposition, Chambliss testified, “[W]e were going to do
everything we could to accommodate [Cox] making a smooth transition back
into the day-to-day routine of the rank and file of the drivers and such.”
7
… Foster’s letter to Hutchison, sent on May 5, 2006, concluded by
stating,

I understand from your letter that Mr. Cox does not want to remain
employed by Waste Management any longer. He, therefore, will be
removed from payroll effective May 19, 2006, as a voluntary
resignation—failure to return from leave. If I am incorrect and Mr.
Cox does not wish to resign, please let me know immediately.

Cox did not express any desire to not resign, so Waste Management removed
him from its payroll on May 19, 2006.

9
 Cox sued appellees on November 20, 2006, and in March 2007, Cox filed

his amended petition. The petition contained causes of action against Waste

Management under the labor code and separate claims for intentional infliction

of emotional distress (IIED) and negligent retention or supervision of Wadley.

The petition also included a common law assault claim against Wadley and an

allegation that Waste Management should be vicariously liable for the assault.

In September 2008, Wadley and Waste Management filed separate

motions for summary judgment. Cox responded to both motions, and after

Waste Management replied to Cox’s response, the trial court granted both

motions. Cox filed his notice of this appeal.

Standards of Review

Traditional summary judgment standard

In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,

215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). The burden of proof is on the movant, and all doubts about

the existence of a genuine issue of material fact are resolved against the

movant. Sw. Elec. Power Co., 73 S.W.3d at 215. Evidence that favors the

10
movant’s position will not be considered unless it is uncontroverted. Great Am.

Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47

(Tex. 1965).

A defendant who conclusively negates at least one essential element of

a cause of action is entitled to summary judgment on that claim. IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2004); see Tex. R. Civ. P. 166a(b), (c). A defendant is entitled to summary

judgment on an affirmative defense if the defendant conclusively proves all the

elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d

217, 223 (Tex. 1999); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the

defendant-movant must present summary judgment evidence that establishes

each element of the affirmative defense as a matter of law. Ryland Group, Inc.

v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).

No-evidence summary judgment standard

After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for summary judgment on the

ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The motion must

specifically state the elements for which there is no evidence. Id.; Johnson v.

Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court

11
must grant the motion unless the nonmovant produces summary judgment

evidence that raises a genuine issue of material fact. See Tex. R. Civ. P.

166a(i); Sw. Elec. Power Co., 73 S.W.3d at 215.

When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a

scintilla of probative evidence that raises a genuine issue of material fact, then

a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981

S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied). We review a

no-evidence summary judgment for evidence that would enable reasonable and

fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802,

822 (Tex. 2005)).

Sexual Harassment Claims

Waste Management filed a traditional summary judgment motion on Cox’s

claims under the labor code. In Cox’s first four issues, he argues that the trial

court improperly granted judgment to Waste Management on the claims

because (1) there are material fact issues regarding whether Cox was sexually

harassed by Wadley, (2) Waste Management did not prove its affirmative

12
defense to show that it exercised reasonable care to prevent and correct sexual

harassment and to show that Cox unreasonably failed to take advantage of

preventative or corrective opportunities, (3) there are material fact issues about

whether Waste Management retaliated against Cox, and (4) there are material

fact issues concerning whether Cox was constructively discharged.8 Cox sued

Waste Management for sexual harassment under chapter twenty-one of the

labor code.

Section 21.051(1) of the labor code states in relevant part, “An employer

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

employer . . . discriminates in any . . . manner against an individual in

connection with compensation or the terms, conditions, or privileges of

employment.” Tex. Lab. Code Ann. § 21.051(1) (Vernon 2006). Sexual

harassment, including same-sex harassment, is one form of discrimination

prohibited under the labor code. See Hoffmann-La Roche Inc. v. Zeltwanger,

144 S.W.3d 438, 445 (Tex. 2004); City of San Antonio v. Cancel, 261 S.W.3d

778, 783 (Tex. App.—Amarillo 2008, pet. denied) (citing Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80–81, 118 S. Ct. 998, 1002–03 (1998)).

8
… Cox lists these issues separately on the first page of his brief, but he
argues them together, and we will consider them together.

13
 In the summary judgment proceedings at trial and in their briefing on

appeal, the parties have characterized Cox’s labor code claims as “quid pro

quo” harassment, “hostile work environment” harassment, and retaliation.

See Zeltwanger, 144 S.W.3d at 445 n.5 (recognizing these forms of sexual

harassment); Garcia v. Schwab, 967 S.W.2d 883, 885 (Tex. App.—Corpus

Christi 1998, no pet.) (same). The parties agree and we conclude that although

Cox filed his sexual harassment claims under the labor code, we may use

federal authority related to Title VII of the Civil Rights Act to determine the

validity of the claims. See 42 U.S.C. §§ 2000e, 2000e-2 (2003); Tex. Lab.

Code Ann. § 21.001(1) (Vernon 2006); Ysleta ISD. v. Monarrez, 177 S.W.3d

915, 917 (Tex. 2005); Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 728

(Tex. App.—Fort Worth 2006, no pet.).

Quid pro quo harassment

Waste Management argued in its motion that it is entitled to summary

judgment on Cox’s quid pro quo sexual harassment claims because the

evidence negates any tangible employment action that resulted from Cox’s

acceptance or rejection of Wadley’s alleged unwelcome sexual harassment.

See La Day v. Catalyst Tech., Inc., 302 F.3d 474, 481 (5th Cir. 2002);

Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 470 (Tex. App.—Austin 2000,

pet. denied) (“The elements of the cause of action are as follows: (1) A

14
supervisor (2) because of sex (3) subjects an employee to (4) unwelcome

conduct that (5) affects a tangible aspect of the employment relationship.”).

A tangible employment action is a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits.

La Day, 302 F.3d at 481–82; see Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 761–62, 765, 118 S. Ct. 2257, 2268–70 (1998).

Cox first contends that he suffered a tangible employment action because

Waste Management allegedly initially offered him only a transfer to Waste

Management’s Lewisville office in response to his sexual harassment

complaint.9 However, assuming as we must for summary judgment purposes

that Cox’s testimony about the initial Lewisville transfer offer is true (and that

Waste Management did not instead also offer to transfer Wadley initially), Cox

did not suffer any tangible employment action based on that offer. 10

Courts have held that a transfer in a plaintiff’s job location, when the transfer

9
… He testified in a deposition, “[T]he only thing [Waste Management]
offered me was going to Lewisville. That was that simple. It was black and
white to where that was it. Because you need to go to Lewisville. This is the
thing for you.”
10
… Without citing authority, Cox argues in his brief that a “transfer in
direct response to a complaint of sexual harassment falls within the definition
of [a] ‘tangible employment action.’”

15
is unaccompanied by any change in salary, benefits, job responsibilities, or

career opportunities, is insufficient as a matter of law to comprise a tangible

employment action. See Harper v. City of Jackson Mun. Sch. Dist., 149 Fed.

Appx. 295, 299 (5th Cir. 2005); Padilla v. Flying J, Inc., 119 S.W.3d 911,

915–16 (Tex. App.—Dallas 2003, no pet.) (holding that a transfer that does

not result in economic harm or significantly different job responsibilities is not

a tangible employment action); see also Baldwin v. Blue Cross/Blue Shield of

Ala., 480 F.3d 1287, 1300 (11th Cir.) (stating that “[p]roviding an employee

with a choice about where she works does not change the terms or conditions

of her employment”), cert. denied, 128 S. Ct. 499 (2007); cf. Herrnreiter v.

Chi. Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002) (collecting cases from

various federal appeals courts and explaining that when a lateral transfer

“significantly reduces the employee’s career prospects by preventing him from

using the skills in which he is trained and experienced,” a tangible employment

action may exist), cert. denied, 540 U.S. 984 (2003). Cox has argued that his

offered transfer to the Lewisville office comprises a tangible employment action

because it would have increased his commuting time, but he has not directed

us to anything in the record to support that assertion (such as evidence

16
demonstrating the relative distance from his residence to the Fort Worth office

as opposed to the Lewisville office), and we have not found such evidence. 11

Also, even if Waste Management’s initial offer to transfer Cox could have

been a tangible employment action, the undisputed evidence shows that Waste

Management later offered to transfer Wadley and keep Cox in the Fort Worth

location while Cox was still on Waste Management’s payroll. Thus, Cox could

have avoided any alleged significant change of his employment conditions that

would have been caused by the transfer. See La Day, 302 F.3d at 481–82;

see also Pa. State Police v. Suders, 542 U.S. 129, 146, 124 S. Ct. 2342, 2354

(2004) (explaining that a plaintiff in a sexual harassment case must make

reasonable attempts to “stave off avoidable harm”).

Next, Cox contends that he suffered a tangible employment action

because he was constructively discharged. A constructive discharge may

qualify as a tangible employment action. Aryain v. Wal-Mart Stores Tex. LP,

534 F.3d 473, 480 (5th Cir. 2008); Dillard Dep’t Stores, Inc. v. Gonzales, 72

S.W.3d 398, 410 (Tex. App.—El Paso 2002, pet. denied). A constructive

discharge occurs when an employer makes conditions so intolerable that an

employee reasonably feels compelled to resign. Davis v. City of Grapevine, 188

11
… In fact, Waste Management’s May 5, 2006 letter to Cox’s counsel
recites that its Lewisville office is closer to Cox’s home.

17
S.W.3d 748, 766 (Tex. App.—Fort Worth 2006, pet. denied); see Brown v.

Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.), cert. denied, 534 U.S. 817

(2001). The Fifth Circuit has explained,

In determining whether a reasonable employee would feel
compelled to resign, we have considered the relevancy of the
following events:

(1) demotion; (2) reduction in salary; (3) reduction in
job responsibilities; (4) reassignment to menial or
degrading work; (5) reassignment to work under a
younger supervisor; (6) badgering, harassment, or
humiliation by the employer calculated to encourage
the employee’s resignation; or (7) offers of early
retirement [or continued employment on terms less
favorable than the employee’s former status].

Brown, 237 F.3d at 566 (alteration in original) (quoting Barrow v. New Orleans

S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994)); see also Suders, 542 U.S. at

134, 124 S. Ct. at 2347 (explaining that to maintain a constructive discharge

claim, the plaintiff must “show that the abusive working environment became

so intolerable that her resignation qualified as a fitting response”).

In his claim that he was constructively discharged, Cox complains about

alleged deficiencies in Waste Management’s investigation and its ultimate

response to his claim. When asked directly during his deposition why his

employment with Waste Management ended, Cox testified, “It was from a

doctor that suggested, under the circumstances, for me not to work there

18
anymore, pretty much, on that.” He then said that Waste Management “didn’t

take [him] serious[ly] from the get-go. . . . And they still don’t care, you know.

. . . And they don’t understand exactly what happened. I don’t believe it was

investigated enough to know exactly what happened. . . . I’m not going to

work for somebody that [does not] care.”

Although Waste Management’s investigation may not have been as

thorough, sensitive, or conclusive as Cox desired, the undisputed evidence

establishes that Waste Management:

C responded to Cox’s complaint within just two days after the
complaint surfaced by talking to Cox more than once in
person, talking to Wadley separately and then with Cox, and
referring Cox to Waste Management’s employee assistance
program;

C allowed Cox to take short-term paid disability leave for
several months following Cox’s complaint;

C promptly suspended Wadley without pay for two weeks and
placed a written reprimand in his file;

C called Cox to inquire about his return to work, and, at the
very least, initially offered him a transfer to Lewisville so that
he would not have to work with Wadley; and

C eventually offered to allow Cox to remain working in the Fort
Worth location and transfer Wadley from that location.

We cannot conclude that these actions were “calculated to encourage” Cox’s

resignation. See Brown, 237 F.3d at 566; Davis, 188 S.W.3d at 766.

19
 Cox contends in his brief that Waste Management “did not respond to

[his] psychiatrist’s statement that [he] could not return to work so long as

[Wadley] remained.” The psychiatrist, Dr. Germaine Hawkins, had written a

letter to Waste Management stating that Cox had suffered significant

debilitating stress, was undergoing psychotherapy, and could not return to work

“as long as the stressor, his being harassed by [Wadley] continues and/or

[Wadley] continues to be employed by your company. [Cox] is very

apprehensive . . . of potential future altercations or situations involving that

particular supervisor in question.” But again, W aste Management’s May 5,

2006 letter to Cox’s attorney established that Cox would not have to work

around Wadley anymore, and the evidence indicates that Wadley did not harass

Cox, or even contact him, after Cox’s initial report, which was more than four

months before Cox’s employment ended.

Cox also contends that even Waste Management’s personnel agreed that

Cox suffered from intolerable working conditions. However, Cox cites portions

of the record where such personnel were asked hypothetical questions about

whether it would be intolerable for Cox to work for Waste Management if (1) he

had to work with Wadley again, (2) Waste Management had taken no action in

response to Cox’s claim, or (3) Waste Management continued to employ

Wadley but transferred Cox. None of the facts underlying the hypothetical

20
questions actually occurred or would have occurred if Cox had responded

differently to Waste Management’s May 5, 2006 letter.

Finally, we neither agree with nor discount Cox’s expressed opinion that

Waste Management did not care about him. However, in analyzing a claim of

constructive discharge, we must use a reasonable person test and not base our

decision on Cox’s subjective opinions. See Potts v. Davis County, 551 F.3d

1188, 1194 (10th Cir. 2009); Barrow, 10 F.3d at 297 & n.19. And the

employer’s state of mind is also not controlling. Gonzales, 72 S.W.3d at 409.

For these reasons, we conclude beyond any genuine issue of material fact

and as a matter of law that the conditions of Cox’s employment should not

have reasonably compelled him to resign. Davis, 188 S.W.3d at 766.

Thus, because Cox did not suffer any tangible employment action, the trial

court properly granted Waste Management’s summary judgment motion on his

quid pro quo harassment claim. See La Day, 302 F.3d at 481–82; Mason, 143

S.W.3d at 798.

Hostile work environment harassment

For Cox to prove a claim of hostile work environment sexual harassment

involving Wadley, he must show that he (1) belonged to a protected group,

(2) was subjected to unwelcome sexual harassment, (3) the harassment was

based on sex, and (4) the harassment affected a term, condition, or privilege

21
of his employment. See Lauderdale v. Tex. Dep’t of Criminal Justice, Inst. Div.,

512 F.3d 157, 163 (5th Cir. 2007); Cancel, 261 S.W.3d at 784 & n.2; Garcia,

967 S.W.2d at 885. In other words, he must prove that Waste Management’s

workplace was permeated with discriminatory intimidation, ridicule, and insult

that was sufficiently severe or pervasive to create a hostile or abusive working

environment to him subjectively and to a reasonable person objectively.

See Garcia, 967 S.W.2d at 885–86.

Even if Cox provides evidence of a prima facie hostile work environment

claim, Waste Management asserted an affirmative defense to that claim.

See City of W aco v. Lopez, 259 S.W.3d 147, 151 n.3 (Tex. 2008).

Because Cox did not suffer any tangible employment action as a result of

Wadley’s alleged sexual harassment, Waste Management is entitled to its

affirmative defense if it “(1) exercised reasonable care to prevent[12 ] and correct

promptly [Wadley’s] harassing behavior[,] and (2) [Cox] unreasonably failed to

take advantage of any preventive or corrective opportunities provided by [Waste

12
… Waste Management has a policy that states in part, “Waste
Management is committed to providing a work environment free of unlawful
harassment. Company policy prohibits sexual harassment. . . . The Company’s
anti-harassment policy applies to all persons involved in the operations of the
Company.” Cox has acknowledged that he received training about the
company’s sexual harassment policy.

22
Management] or to avoid harm otherwise.” Id.; see Ellerth, 524 U.S. at 765,

118 S. Ct. at 2270.

Cox asserts that Waste Management did not prove its defense as a

matter of law because it did not take appropriate and prompt remedial action,

did not advise him of any remedial action taken, and conducted a deficient

investigation into his complaint. In Skidmore v. Precision Printing and

Packaging, Inc., a company official, Bryan, allowed an alleged harassment

victim, Skidmore, to work away from her harasser, Mitchell, but did not

conduct any investigation or interview Skidmore’s co-workers until after

Skidmore filed an Equal Employment Opportunity Commission (EEOC) complaint

three months later. 188 F.3d 606, 611 (5th Cir. 1999). Because Skidmore felt

ostracized by other employees after making the complaint, she eventually left

her employment. Id. at 611–12. After Skidmore prevailed in her hostile work

environment harassment case against her employer at trial, the Fifth Circuit

reversed the trial court’s judgment because it held that, as a matter of law, the

employer took appropriate remedial action. Id. at 612, 616. The Fifth Circuit

reasoned,

This Court has often found that an employer’s response to
employee behavior constituted prompt remedial action as a matter
of law. In many such instances, in determining whether the
employer’s actions were remedial, we have considered whether the
offending behavior in fact ceased. In this case, we hold that

23
 Precision’s [the employer’s] conduct constitutes “prompt remedial
action” as a matter of law. Bryan testified that he instructed
Mitchell to leave Skidmore alone and moved Skidmore to a new
shift. At that point, the hostile work environment terminated.
Though Skidmore testified that she remained uncomfortable,
Mitchell’s conduct ceased its offensive nature. Indeed, Skidmore
never registered a further complaint with Bryan or any other
manager at Precision. Therefore, Precision’s action was
“reasonably calculated” to relieve, and in fact did successfully
abate, the hostile work environment, despite the fact that Bryan did
not conduct any investigation of the allegations until after Skidmore
filed an EEOC complaint months later, did not reprimand Mitchell,
and made no follow-up inquiry with Skidmore as to whether the
harassment had ceased. Thus, . . . the district court erred in failing
to grant judgment as a matter of law to Precision.

Id. at 616 (citations omitted and emphasis added).

In a similar fashion to Skidmore’s argument, Cox has expressed his

disagreement with how particular Waste Management officials evaluated the

merits of his complaint or how effectively they investigated it. However, there

is no dispute that Waste Management suspended Wadley without pay for two

weeks after Cox’s complaint13 and notified Wadley that he had violated the

company’s harassment policy. There is also no dispute that all of Wadley’s

communication with Cox stopped after Waste Management took that action.14

13
… Cox does not contend that Waste Management is not entitled to its
affirmative defense because Wadley’s suspension came too late or because
Waste Management’s investigation took too long.
14
… Cox cites Fuller v. City of Oakland, Cal., to argue that mere cessation
of harassment does not establish an employer’s affirmative defense. 47 F.3d
1522, 1528–29 (9th Cir. 1995). But in Fuller, the court concluded that the

24
 We conclude that those circumstances render the factual disputes about

specific officials’ investigative actions leading up to Wadley’s discipline

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

1996) (explaining that the issue is not whether an investigating official took

prompt remedial action, but whether the employer did so); see also Weger v.

City of Ladue, 500 F.3d 710, 723 (8th Cir. 2007) (holding that the employer

was entitled to its affirmative defense despite significant flaws in its

investigation); Baldwin, 480 F.3d at 1305 (explaining that “even if the process

in which an employer arrives at a remedy in the case of alleged sexual

harassment is somehow defective, the defense is still available if the remedial

result is adequate” because the employment statutes are “concerned with

preventing discrimination, not with perfecting process”).

Also, although Waste Management did not terminate Wadley’s

employment in response to Cox’s complaint, as Cox might have desired, there

is no requirement that the “employer use the most serious sanction available to

punish an offender, particularly [upon] . . . the first documented offense.”

Waymire, 86 F.3d at 429. Finally, although Cox claims that Waste

employer failed to take any appropriate remedial steps following the employee’s
complaint; the same cannot be said here. Id. at 1529; see also Knabe v. Boury
Corp., 114 F.3d 407, 411 n.8 (3d. Cir. 1997) (“A remedial action that
effectively stops the harassment will be deemed adequate as a matter of law.”).

25
Management failed to provide him with information about Wadley’s suspension,

Waste Management’s May 5, 2006 letter to Cox’s counsel indicated that Waste

Management had taken “serious disciplinary action” against Wadley.

For these reasons, we conclude as a matter of law that Waste

Management took prompt remedial action in response to Cox’s complaint and

satisfied the first element of its affirmative defense as a matter of law.

Because Cox has not challenged in the substance of his appellate brief whether

Waste Management satisfied the second element and because we conclude that

Cox failed to take advantage of Waste Management’s corrective opportunities

by declining to return to work following Waste Management’s May 5, 2006

letter, we hold that Waste Management proved its affirmative defense as a

matter of law. See Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270; Lopez, 259

S.W.3d at 152 n.3. Thus, on the basis of the affirmative defense, we hold that

the trial court did not err by granting summary judgment for Waste

Management on Cox’s hostile work environment sexual harassment claim. 15

15
… Because we hold that the trial court properly granted summary
judgment on the basis of Waste Management’s affirmative defense, we will not
address whether the evidence raised a genuine issue of material fact on the
prima facie elements of Cox’s hostile work environment claim. See Doe v. Tex.
Ass'n of Sch. Bds., Inc., 283 S.W.3d 451, 457 n.9 (Tex. App.—Fort Worth
2009, pet. denied).

26
Retaliation

Next, Cox asserts that the trial court erred by granting summary judgment

for Waste Management on his retaliation claim. Section 21.055 of the labor

code establishes that an employer commits an unlawful employment practice

if the employer retaliates or discriminates against a person who files a sexual

harassment complaint. See Tex. Lab. Code Ann. § 21.055 (Vernon 2006).

“The elements of a retaliation claim are (1) the employee engaged in a

protected activity, (2) the employer took action against the employee, and (3) a

causal connection between the employee’s protected activity and the adverse

employment decision.” Niu, 206 S.W.3d at 730; Herbert v. City of Forest Hill,

189 S.W.3d 369, 376 (Tex. App.—Fort Worth 2006, no pet.).

At trial and on appeal, Waste Management has contended that it is

entitled to summary judgment on Cox’s retaliation claim because the evidence

establishes as a matter of law that Cox did not suffer from an adverse

employment action. An employer’s action is an adverse employment action for

purposes of a retaliation claim when it is harmful to the point that it could

“dissuade a reasonable worker from making or supporting a charge of

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57,

68, 126 S. Ct. 2405, 2409, 2415 (2006); see Montgomery County v. Park,

246 S.W.3d 610, 614 (Tex. 2007) (approving of the Supreme Court’s

27
reasoning in White as applied to a claim of retaliation under the Texas

Whistleblower Act); Niu, 206 S.W.3d at 731.

Cox argues that he suffered from an adverse employment action because

Waste Management forced his joint meeting with Wadley. Cox testified that

the meeting occurred despite his persistent objections and that he told Waste

Management officials about Wadley’s threats to him before the meeting began.

Godoy knew about Cox’s anxiety that Wadley caused before the joint meeting

occurred. Various Waste Management officials have acknowledged how Cox’s

exposure to Wadley during the joint meeting could have increased Cox’s anxiety

and could have intimidated him.

However, Godoy testified that the joint meeting occurred so Waste

Management could try to clarify “exactly what was happening” and to see

“what had transpired or was transpiring between” Cox and Wadley. He said

that he told Cox that the joint meeting was intended to clarify issues and arrive

at a potential resolution. Although Waste Management’s decision to have a

joint meeting with Wadley and Cox may not have been prudent, Cox has not

directed us to any evidence in the record indicating that Waste Management

had a more sinister motive for the joint meeting.

The purpose of anti-retaliation provisions in employment discrimination

statutes is to prevent an employer from interfering “with an employee’s efforts

28
to secure or advance enforcement” of such statutes’ anti-discrimination

provisions. White, 548 U.S. at 63, 126 S. Ct. at 2412. Also, one of the

stated purposes of chapter twenty-one of the labor code, which contains the

anti-retaliation provision at issue, is to “secure for persons in this state . . .

freedom from discrimination in certain employment transactions.” Tex. Lab.

Code Ann. § 21.001(4). Thus, we hold that Waste Management’s decision to

have a joint meeting with Cox and Wadley—which the evidence indicates was

intended to promote, not hamper, the investigation of Cox’s sexual harassment

allegations—cannot as a matter of law serve as an adverse employment action

(and thus the basis for Cox’s retaliation complaint) even if that meeting was not

well advised under the circumstances. See Brooks v. City of San Mateo, 229

F.3d 917, 928–29 (9th Cir. 2000) (holding that despite the employer’s

requiring its employee, the sexual harassment victim, to attend group therapy

sessions and discuss the harassment incident with co-workers, an “employer’s

legitimate effort to deal with a traumatic workplace situation . . . regarding

sexual harassment cannot be the basis for a retaliation claim”). In other words,

we hold that a procedure that (as far as we can tell from the evidence in the

record) was intended to expose facts regarding a claim of sexual harassment,

even if it is unpleasant, would not “dissuade a reasonable worker from making

29
or supporting a charge” of that harassment. See White, 548 U.S. at 57, 68,

126 S. Ct. at 2409, 2415; Niu, 206 S.W.3d at 731.

Next, Cox claims that Waste Management’s offer to transfer him to its

Lewisville office comprises an adverse employment action. But while Cox

states that working in Lewisville would have been substantially different, he has

not directed us to any evidence showing that working there would have been

any worse. Thus, he cannot use the transfer offer to establish an adverse

employment action. See Scott v. Godwin, 147 S.W.3d 609, 617 (Tex.

App.—Corpus Christi 2004, no pet.) (analyzing a retaliation claim and the

requirement of an adverse employment action under another statute and

explaining that the employee must show the transfer makes the job objectively

worse) (citing Serna v. City of San Antonio, 244 F.3d 479, 485 (5th Cir.), cert.

denied, 534 U.S. 951 (2001)); see also Sabzevari v. Reliable Life Ins. Co., 264

Fed. Appx. 392, 396 (5th Cir.) (stating that “a transfer that does not involve

a demotion in form or substance cannot rise to the level of a materially adverse

employment action”), cert. denied, 129 S. Ct. 111 (2008); Alvarado v. Tex.

Rangers, 492 F.3d 605, 613 (5th Cir. 2007) (noting that a transfer can be an

adverse employment action if “the new position proves objectively worse—such

as being less prestigious or less interesting or providing less room for

advancement”).

30
 Because we hold as a matter of law that neither Cox’s meeting with

Wadley nor Waste Management’s transfer offer to Cox can qualify as an

adverse employment action, we conclude that the trial court properly granted

Waste Management’s summary judgment motion as to Cox’s retaliation claim.

See Mason, 143 S.W.3d at 798; Niu, 206 S.W.3d at 730.

Having decided that the trial court properly granted Waste Management’s

traditional summary judgment on all of Cox’s claims arising under the labor

code, we overrule his first four issues.

Assault

In his fifth and eighth issues, Cox asserts that the trial court erred by

granting Wadley’s and Waste Management’s summary judgment motions on his

claim that Wadley assaulted him. Wadley asserts that Cox has no evidence to

establish any of the elements of this claim; Waste Management contends the

same and also asserts that even if Wadley had assaulted Cox, it could not be

held vicariously liable for the assault through ratification or other reasons.

The definition of assault is the same in a civil or criminal trial. Gibbins v.

Berlin, 162 S.W.3d 335, 340 (Tex. App.—Fort Worth 2005, no pet.); see City

of Waco v. Williams, 209 S.W.3d 216, 223 n.7 (Tex. App.—Waco 2006, pet.

denied). Thus, to establish his assault claim, Cox must show that Wadley

(1) intentionally, knowingly, or recklessly caused him bodily injury,

31
(2) intentionally or knowingly threatened him with imminent bodily injury, or

(3) intentionally or knowingly caused physical contact with him when Wadley

knew or should have reasonably believed that he would regard the contact as

offensive or provocative. See Tex. Penal Code Ann. § 22.01(a) (Vernon Supp.

2009); City of Waco, 209 S.W.3d at 223 n.7. A threat is “imminent” when it

is a threat of present harm, not future or conditional harm. Devine v. State,

786 S.W.2d 268, 270 (Tex. Crim. App. 1989).

Wadley never hit or shoved Cox or took any similar physical action

against him; there is no evidence that Wadley ever caused Cox bodily injury.

And the record contains only one incident of Wadley touching Cox.

Specifically, Cox testified that Wadley once “grabbed” his shoulder for a “few

seconds” after a meeting to lead Cox to a company truck and “show [Cox]

some map or something.” The record indicates that Wadley’s giving Cox a map

for Cox’s route was a normal part of Wadley’s supervisory duties.

Cox admitted that he “didn’t know exactly” what Wadley’s intentions were

when Wadley touched his shoulder, but he did not think that Wadley was trying

to physically hurt him, and he admitted that Wadley’s hand did not leave any

physical mark and was on his shoulder only “long enough to guide [him] to

where [Wadley] was going and then he removed it.” Cox never told anyone at

Waste Management about the grabbing of his shoulder, and there is nothing in

32
the record indicating that Wadley knew or should have reasonably believed that

touching Cox on his shoulder for a few seconds would be offensive or

provocative to Cox. As for Wadley’s communications with Cox, Cox testified

that the only threats that Wadley made were that he would find Cox wherever

Cox went and that Cox’s expressed happiness made Wadley “want to hurt”

him. Neither of these threats are imminent under the standard explained

above—at most, they express the potential for future harm.

Under these facts, we conclude that the trial court properly granted

Wadley’s and Waste Management’s summary judgment motions on the ground

that the evidence submitted at trial cannot support Cox’s assault claim as a

matter of law. See Hamilton, 249 S.W.3d at 426; Moore, 981 S.W.2d at 269.

Thus, we overrule Cox’s fifth and eighth issues.

Negligent Retention or Supervision

In his sixth issue, Cox argues that the trial court erred by granting

summary judgment against his claim that Waste Management negligently

supervised or retained Wadley. Waste Management has argued at trial and on

appeal that Cox’s negligent supervision or retention claim is barred by a

provision of the labor code pertaining to workers’ compensation. Texas courts

have explained that section 408.001(a) of the labor code prohibits an employee

whose employer carries workers’ compensation insurance from maintaining

33
some common law claims, such as some negligence claims, against the

employer. See Tex. Lab. Code Ann. § 408.001(a) (Vernon 2006); Fairfield Ins.

Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 655 n.1 (Tex. 2008);

Feazell v. Mesa Airlines, Inc., 917 S.W.2d 895, 898–99 (Tex. App.—Fort

Worth 1996), writ denied, 938 S.W.2d 31 (Tex. 1997). Cox’s negligent

retention and supervision claims are simple negligence causes of action based

on Waste Management’s alleged direct negligence. Dangerfield v. Ormsby, 264

S.W.3d 904, 912 (Tex. App.—Fort Worth 2008, no pet.).

With regard to the effect of section 408.001(a), Cox argues on appeal,

for the first time in his reply brief, only that Waste Management did not prove

that it carried workers’ compensation insurance at the time of his employment;

he does not assert any other legal or factual reason why section 408.001(a)

does not bar these two claims. However, the evidence submitted by Waste

Management (through an affidavit signed by Godoy) establishes that Waste

Management carried workers’ compensation insurance during Cox’s

employment and that Cox was covered under the insurance. Also, Godoy

testified during his deposition that Cox filed a workers’ compensation claim

during his absence from work.

Thus, because Cox’s sole contention related to the effect of section

408.001(a) is not factually true, we conclude that the trial court’s order

34
granting Waste Management’s summary judgment motion should be affirmed

as to Cox’s negligent retention or supervision claims on the basis that the labor

code precludes the claims. See Haire v. Nathan Watson Co., 221 S.W.3d 293,

301–02 (Tex. App.—Fort Worth 2007, no pet.) (holding that part of a trial

court’s summary judgment decision should be affirmed because the appellant

did not challenge all of the grounds for the decision on appeal); Shelton v.

Sargent, 144 S.W.3d 113, 129 (Tex. App.—Fort Worth 2004, pet. denied)

(holding the same and noting that “[w]e do not have a duty to perform an

independent review of the record and applicable law”); see also Vawter v.

Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (”A court of appeals may not

reverse a trial court’s judgment in the absence of properly assigned error.”).

We overrule Cox’s sixth issue.

Intentional Infliction of Emotional Distress

In his ninth issue, Cox asserts that the trial court erred by “deciding that

there were no material fact issues regarding whether Eric Cox was subjected

to intentional infliction of emotional distress by Tony Wadley individually.”

The substance of Cox’s briefing on his IIED claim only concerns Wadley’s

asserted liability for that claim; Cox has not argued in briefing or during oral

argument that the trial court’s decision to grant Waste Management’s summary

judgment motion on his IIED claim was improper. However, Cox did not plead

35
an IIED claim against Wadley in the trial court. Instead, Cox asserted in his first

amended petition only that Waste Management was “directly liable for

intentional infliction of emotional distress upon Eric Cox—not as a derivative

cause of action[,] . . . but as a result of Waste Management’s own conduct.”

Thus, because Cox did not plead an IIED claim against Wadley at trial, and

because Cox’s ninth issue concerns only an alleged IIED claim against Wadley,

not Waste Management, we also overrule this issue. See Via Net v. TIG Ins.

Co., 211 S.W.3d 310, 313 (Tex. 2006) (stating that “[d]efendants are not

required to guess what unpleaded claims might apply and negate them”);

SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995)

(explaining that a summary judgment defendant is only required to “meet the

plaintiff’s case as pleaded”).

Punitive Damages

Finally, in his seventh issue, Cox asks whether the trial court erred by

deciding that he could not recover punitive damages. However, because we

have decided that the trial court properly granted summary judgment regarding

all of Cox’s claims pleaded against both Waste Management and Wadley, we

decline to address whether punitive damages could have been awarded on

those claims, and we overrule Cox’s seventh issue. See Tex. R. App. P. 47.1;

36
Hawkins v. Walker, 233 S.W.3d 380, 395 n.47 (Tex. App.—Fort Worth 2007,

pet. denied).

Conclusion

Having overruled all of Cox’s issues, we affirm the trial court’s orders

granting the summary judgment motions of Waste Management and Wadley.

TERRIE LIVINGSTON
JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

DELIVERED: October 29, 2009

37