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. 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 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 avoidworking with Brown. Butshe did not mention thisreason 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. 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 resourcesthe 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 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 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 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 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] 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 “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] 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 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 lateApril 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 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 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 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 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 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. * * * 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
