Preview
Affirmed as Modified and Opinion filed May 28, 2015
Pe
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FILED
Chris Danie!
District Clerk
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MAY 2 8 2015 4 /O°RVYN
Time:
& Harri Texas
By. Deputy
In The
HSourteenth Court of Appeals
NO. 14-14-00059-CV
RIVER OAKS L-M. INC. D/B/A WEST POINT LINCOLN MERCURY,
Appellant/Cross-Appellee
Vv.
VERONICA VINTON-DUARTE, Appellee/Cross-Appellant
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Cause No. 2010-54452
OPINION
An automobile dealership employee filed a sexual-harassment complaint;
shortly thereafter, she was terminated for theft. The employee sued the dealership
for sexual harassment, retaliatory discharge, and defamation. The dealership
counterclaimed for theft, conversion, breach of fiduciary duty, and fraud. A jury
found in favor of the employee on the sexual-harassment, retaliation, and
defamation claims. The jury also found in favor of the automobile dealership on its
theft, conversion, breach of fiduciary duty, and fraud claims. The trial court
granted judgment notwithstanding the verdict (JNOV) to the dealership on the
employee’s defamation claims, but otherwise signed a judgment on the jury’s
verdict.
On appeal, the automobile dealership asserts the evidence is legally
insufficient to: (1) support a finding that “but for” the filing of the sexual-
harassment complaint, the employee would not have been fired when she was;
(2) show the dealership knew or should have known of the sexual harassment and
failed to take prompt remedial measures; (3) support an award of attorney’s fees;
(4) support recovery of future lost earnings/employment benefits; and (5) sustain
any recovery for mental anguish damages. The dealership further urges that the
evidence conclusively establishes (1) that it exercised reasonable care to prevent or
correct any harassing behavior and the employee unreasonably failed to avail
herself of these procedures and (2) the after-acquired evidence defense to loss of
future employment. Finally, the dealership contends the trial court erred in
applying the Texas Labor Code damage cap per claim, rather-than per complainant.
The employee urges her own issues as a cross-appellant. First, she asserts that the
trial court erred in granting JNOV on her defamation claims. She further argues
that there is no evidence to support the findings on the dealership’s counterclaims
for theft or to support the award of attorney’s fees to the dealership.
We conclude that legally sufficient evidence supports the jury’s findings on
the employee’s sexual-harassment and retaliation claims, and that the evidence
does not conclusively establish the dealership’s affirmative defenses. However, we
agree that the trial court erred in applying the Texas Labor Code damages cap. We
further determine the employee’s cross-issues lack merit. We modify the judgment
to reflect the appropriate damages in light of our resolution of the damages-cap
issue, and we affirm the judgment as modified.
I. BACKGROUND
Veronica Vinton-Duarte began working at River Oaks L-M. Inc. d/b/a West
Point Lincoln Mercury (West Point) as the aftermarket sales manager in 2006.'
Her immediate supervisor was the general sales manager, Bob Cesca, who reported
to West Point’s general manager, Chris Poulos. Vinton-Duarte was paid a base
salary plus commission, and she relied largely on vehicle salespeople bringing
customers to her for aftermarket accessory sales.
Several months after she started working at West Point, male co-workers
began to subject her to sexual comments, including jokes about having sex with
her that were told in front of other salespeople and suggestions that she dress more
provocatively to increase sales. These comments and jokes became a common,
almost daily, occurrence. Once, when she was kneeling to read a part number, new
car salesperson Ryan O’Cain asked her to “take care of him’ because she was
“already down there.” Salesperson Khalil Benazzouz joked about a dream he’d had
involving Vinton-Duarte in front of her and other salespeople, in which he’d “done
[Vinton-Duarte] all night long.” He also told Vinton-Duarte he “was going to do
[her] so hard he would get rid of all [her] frustration.” Used car sales manager
Dwight Jones also often made sexually inappropriate comments to Vinton-Duarte.
When she told him she was “tired” of his comments, he responded that she didn’t
know how to take a compliment. Jones also regularly kissed her hand while
breathing heavily on it, which made Vinton-Duarte “very uncomfortable.”
' “Aftermarket” products include vehicle accessories that do not come with a new vehicle
from the factory, but can be sold and added to the vehicle when it is purchased from the
dealership.
Finance director Reggie McNair regularly propositioned Vinton-Duarte for
dates and sex after she mentioned that her marriage had become “complaisant.” He
began asking her out and making comments, suggesting that they have “a
relationship where there were no strings attached” and telling her none of his past
girlfriends had “any complaints.” Despite Vinton-Duarte’s repeated refusals,
McNair said he would continue to pursue her until he “closed her.” McNair made
harassing comments to Vinton-Duarte, including expressing his desire to “bury
[his] face between her legs.” McNair made comments and advances to her in front
of other employees, including West Point managers. McNair also made comments
and advances to other female employees at West Point, including two female
salespersons. McNair did not stop his unwelcome comments, jokes, or
solicitations; he often tried to give women at the workplace hugs and attempted to
grab their buttocks. McNair frequently approached Vinton-Duarte in her office
when she was alone to give her hugs. Vinton-Duarte stopped standing up when he
was around in an effort to avoid his unwelcome hugs and touching. McNair asked
her to hug him even when she was attempting to avoid him, and once McNair tried
to physically pull her out of her chair so that he could hug her; accounting clerk
Laura Garcia witnessed this interaction.
As the harassment of Vinton-Duarte transitioned from comments and jokes
to physical touching, she began to try to deflect attention away from herself by
changing her clothing, hair, and makeup. The harassment persisted, however.
O’Cain grabbed Vinton-Duarte’s buttocks as she walked by him in front of others;
he even grabbed her buttocks in front of Cesca. Cesca apparently reprimanded
O’Cain because the next day, O’Cain told her he had deliberately not brought some
customers to her because she had gotten him into “trouble.” When Vinton-Duarte
complained to Cesca, Cesca told her to “just ignore it” and that O’Cain “would get
over it.” Even Cesca sent Vinton-Duarte a,sexually-themed video via company
email.
Some combination of comments, solicitations, or unwanted touching was an
almost daily occurrence for Vinton-Duarte from 2006 to 2009. Many of these
incidents involved or occurred in front of West Point’s managers, including the
harassment by McNair and the touching by O’Cain that was seen by Cesca.
Vinton-Duarte confided in office/accounting manager Lori Demaret many times
over this time period. Demaret told her there was “different treatment between
female employees and male employees.” Demaret suggested that if Vinton-Duarte
ever reported the harassment to the human resources department, Vinton-Duarte
would need to be careful because Vinton-Duarte could lose her job; Demaret
reminded Vinton-Duarte that the management of West Point was already aware of
what was happening and chose to overlook it. According to Vinton-Duarte,
So, many times when I went upstairs to talk to [Demaret], I would talk
to her about different instances; but after talking to her and realizing
that I could possibly lose my job over it, it made me second guess
starting or initiating the process, or for me to be the one that brought it
all to light because I couldn’t afford to lose my job.
Vinton-Duarte was also concerned about reporting the harassment because Cesca
hadn’t taken it seriously.
The sexual harassment culminated in an incident that occurred in December
of 2008. McNair came into Vinton-Duarte’s office while she was sitting at her
desk. He stood behind her and told her she didn’t understand the “effect” she had
on him and asked her to give him her hand. When she did, he rubbed her hand over
his “aroused penis.” She screamed and told him to get out of her office.
Salesperson Ruben Mendoza heard Vinton-Duarte scream; Vinton-Duarte
immediately told Mendoza what had happened. She also told Demaret about the
incident shortly after it occurred; Demaret acknowledged that Vinton-Duarte was
very upset when she described the incident. Demaret “warned” Vinton-Duarte that
“the attitude at West Point was that, if you were going to go to Human Resources
and complain about anybody, you better — you might as well just pick up your box
and pack your things, because that is ultimately what would happen.”
Sometime in early June 2009, Demaret told Vinton-Duarte that she had
recently attended a training session. Demaret told Vinton-Duarte that Vinton-
Duarte needed to go to human resources or Demaret would “because it had gotten
to a point where [Demaret] could lose her job if [Demaret] didn’t report all the
incidents that had been going on.” Vinton-Duarte called human resources manager
Renee Velasco to report the harassment shortly thereafter and set up a meeting to
discuss the incidents.
After Vinton-Duarte’s initial meeting with Velasco, Velasco summarized the
meeting in a way that indicated that Vinton-Duarte did not want an investigation.
Vinton-Duarte quickly corrected Velasco, telling her that she wanted an
investigation “done right,” as opposed to investigations in the past that hadn’t been
properly conducted and hadn’t resulted in any changes. Velasco informed Vinton-
Duarte that, as part of the investigation, she would have to tell the people she was
investigating who had made the complaint. Vinton-Duarte was concerned because
she knew she that would bring retaliation: “I knew that it would be a matter of
time, that I would eventually lose my job; and I could not afford to lose my job.”
More than a month after Vinton-Duarte met with Velasco, Velasco was still
“working on a version of the complaint.” Vinton-Duarte was “very concemed”
about the time that had passed. Velasco completed the complaint and asked
Vinton-Duarte to sign it; however, Vinton-Duarte had concerns about the
complaint and emailed Velasco with them. Vinton-Duarte was “disappointed”
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because she had met with Velasco on two occasions for more than an hour each
time and gave Velasco as much information as she could, but much of this
information was not included in the complaint Velasco drafted. Vinton-Duarte
decided to write her own report.
On August 6, Vinton-Duarte met with Velasco and West Point legal
representative Elza Bullock. On August 28, Bullock again met with Vinton-Duarte
at West Point; he informed her that their investigation had “taken them into a
different avenue,” so they were investigating some other issues. He did not provide
Vinton-Duarte with any specific information regarding what the other issues were.
During the period between Vinton-Duarte’s first meeting with Velasco and her
August 28 meeting with Bullock, Vinton-Duarte sent several emails seeking an
update on the status of the investigation; no one provided her with any updates.
While the investigation was ongoing, the environment at West Point became very
tense, and everyone was discussing the investigation. The salespeople had stopped
bringing customers to Vinton-Duarte for aftermarket sales. Cesca stopped talking
to Vinton-Duarte and told at least one other employee not to communicate with
Vinton-Duarte. After Vinton-Duarte reported the harassment, “things just got
worse really quickly.” Nothing was being done and Vinton-Duarte explained that
the stress became unbearable. Vinton-Duarte visited the doctor; he put her on some
antidepressants to help alleviate some of the stress and pressure Vinton-Duarte was
undergoing.
On August 31, Vinton-Duarte was called to the conference room at West
Point. Chris Poulos, controller Linda Ellis, and Bullock were all there. They
explained that she had been called up to answer some questions regarding a
transaction. Vinton-Duarte was shown invoices from a transaction involving a
toolbox, cargo carrier, and cargo bag that had occurred in March of 2009; Vinton-
Duarte explained she could not remember the details of this transaction. She was
asked why she had coded the items on the invoices to the particular vehicles.
Vinton-Duarte explained that she didn’t know and that it had “obviously... been a
mistake.” Vinton-Duarte asked for more information, but was not permitted to see
the transaction files. She was allowed to look through her own records in her
office, but found no information on this transaction. Bullock told her she was being
“released”; she was instructed to clean out her office, turn in her company vehicle,
and leave the dealership.
During the following days, Vinton-Duarte received calls and messages from
her former co-workers, who had been told she was terminated for theft. Mendoza
specifically told her that West Point’s management told him about the alleged theft
and that West Point was going to press charges for theft against Vinton-Duarte.
Vinton-Duarte was “devastated” that West Point was accusing her of theft; she felt
it was a “slap in the face.” Her employment termination created many problems in
her life; she began having marital issues and the “‘stress was unbearable.” She and
her husband separated several times, although he stayed in the house with her. She
and her husband discussed bankruptcy because there were bills they couldn’t pay.
Her electricity and water were turned off “a couple times,” and it was hard to
explain the financial difficulties to her children.
Vinton-Duarte was never contacted to further discuss or explain the matter;
instead, she received her official termination letter on September 17, indicating she
had been terminated for theft. West Point later “discovered” several other alleged
thefts. First, West Point asserted that Vinton-Duarte stole four plasma televisions.
Although West Point was invoiced for these TVs, on each invoice, Vinton-Duarte
marked out “plasma TV” and wrote in “DVD player.” The transaction files showed
that each of the vehicles associated with these invoices had aftermarket DVD
players installed in them. Further, Vinton Duarte explained that the actual plasma
TVs in question had been ordered for use as a sales promotion give-away. West
Point’s documents showed that the promotional TVs were delivered to West
Point’s parts department, and Cesca acknowledged that several TVs were given
away as a sales promotion through the parts department. West Point also accused
Vinton-Duarte of stealing upgraded wheels and tires in connection with a vehicle
purchased by West Point accounting employee Laura Garcia’s husband. Finally,
West Point accused Vinton-Duarte of stealing a gaming system, but the
dealership’s documents showed that the system was installed in a customer’s
vehicle, and the customer paid West Point for the system. All of the theft
allegations were brought to the attention of West Point’s management by McNair
after Vinton-Duarte lodged her sexual-harassment complaint; McNair apparently
had never reported any prior allegations of theft to anyone at the dealership.
Vinton-Duarte filed suit against West Point for sexual harassment,
retaliation, and defamation. West Point counterclaimed for theft, conversion,
breach of fiduciary duty, and fraud based on the alleged thefts described above.
After a five-day trial, the jury unanimously found in favor of Vinton-Duarte on her
sexual-harassment and retaliation claims. The jury further found that West Point
had defamed Vinton-Duarte. But the jury also found in West Point’s favor on its
counterclaims against Vinton-Duarte, awarding West Point damages only for theft
of the toolbox, cargo carrier, cargo bag, and upgraded wheels and tires. The jury
was dismissed without any stated objections to the verdict.
The trial court granted JNOV on Vinton-Duarte’s defamation claim. The
trial court otherwise entered judgment on the jury’s verdict, awarding actual
damages (plus pre-judgment interest) of $739,623.88, as found by the jury on
Vinton-Duarte’s sexual-harassment and retaliation claims, including offsets for the
statutory cap and the damages on West Point’s counterclaims. The trial court also
awarded Vinton-Duarte attorney’s fees of $146,350.00, offset by the award of fees
to West Point on its Texas Theft Liability Act counterclaim. This appeal timely
followed.
II. WEST POINT’S SUFFICIENCY ISSUES
Most of the parties’ issues concern sufficiency of the evidence. Thus, we
begin by setting forth the appropriate standard of review for these issues.
A Standard of Review
In reviewing the legal sufficiency of the evidence, we view the evidence in
the light most favorable to the finding, crediting favorable evidence if a reasonable
fact finder could, and disregarding contrary evidence unless a reasonable fact
finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005).
When the appellant attacks the legal sufficiency of a finding on which it did not
have the burden of proof, it must demonstrate that there is no evidence to support
the finding. Jd. at 810. When a party attacks the legal sufficiency of an adverse
finding on an issue on which it has the burden of proof, it must demonstrate on
appeal that the evidence establishes, as a matter of law, all vital facts in support of
the issue. Dow Chem. Co. v, Francis, 46 §.W.3d 237, 241 (Tex. 2001). We must
first examine the record for evidence that supports the finding; if there is no
evidence to support the finding, then we examine the entire record to determine if
the contrary position is established as a matter of law. See id. We may sustain the
issue only if the contrary position is conclusively established. Jd.
We may not sustain a legal sufficiency, or “no evidence,” point unless the
record demonstrates that: (1) there is a complete absence of a vital fact; (2) the
court is barred by the rules of law or of evidence from giving weight to the only
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evidence offered to prove a vital fact; (3) the evidence to prove a vital fact is no
more than a scintilla; or (4) the evidence establishes conclusively the opposite of
the vital fact. City of Keller, 168 S.W.3d at 810. The jury is the only judge of
witness credibility and the weight to give to a witness’s testimony. See id. at 819.
B. Retaliation Claim
In its first issue, West Point challenges the sufficiency of the evidence to
support Vinton-Duarte’s retaliation claim. Specifically,, West Point asserts there is
no evidence that “but for” the filing of her complaint, Vinton-Duarte would not
have been discharged when she was. West Point further asserts that there was no
evidence that the stated reason for her termination — theft of property — was false.
Vinton-Duarte brought her claim for retaliation under the Texas Commission
on Human Rights Act (TCHRA). See Tex. Lab. Code Ann. § 21.055 (West,
Westlaw through 2013 3d C. Sess.).” Here, in question number 5, the jury was
charged as follows regarding Vinton-Duarte’s retaliation claim:
Did West Point discharge Veronica Vinton-Duarte because of
Veronica Vinton-Duarte’s making or filing of a complaint about
sexual harassment by West Point?
Veronica Vinton-Duarte must establish that West Point’s
discharge of her from her employment, if any, would not have
occurred when it did without her making or filing of a
complaint about sexual harassment by West Point, if any.
There may be more than one cause for an employment
decision. Veronica Vinton-Duarte need not establish that her
making or filing of a complaint about sexual harassment by
West Point, if any, was the sole cause of her discharge from
employment, if any.
> We may follow federal statutes and cases in applying the TCHRA. See Tex. Labor Code
Ann. § 21.001; AutoZone, Inc. v. Reyes, 272 $.W.3d 588, 592 (Tex. 2008) (noting that, by
enacting the TCHRA, the Texas Legislature “intended to correlate state law with federal law in
employment discrimination cases”).
ll
Answer “Yes” or “No.”
The jury answered in the affirmative. In question number 7, the jury was also
asked, predicated on its answer to this question, “Did Veronica Vinton-Duarte
engage in misconduct for which West Point would have legitimately discharged
her solely on that basis?” The jury answered this question, “No.”
At the charge conference, West Point did not object to the form of either of
these questions. We thus measure the sufficiency of the evidence supporting the
jury’s answers to these questions using the charge given. See Osterberg v. Peca, 12
S.W.3d 31, 55 (Tex. 2000). As question numbers 5 and 7, excerpted above,
correctly reflect, Vinton-Duarte was required to establish that West Point’s
discharge of Vinton-Duarte would not have occurred when it did without her
making or filing of a sexual-harassment complaint, and Vinton-Duarte was not
required to establish that her making or filing of a sexual-harassment complaint
was the sole cause of West Point’s discharge of Vinton-Duarte. See Herbert v. City
of Forest Hills, 189 S.W.3d 369, 377 (Tex. App.—Fort Worth 2006, no pet.);
McMillon v, Tex. Dep’t of Ins., 963 S.W.2d 935, 940 (Tex. App.—Austin 1998, no
pet.).
Where, as here, there is no direct evidence of causation, circumstantial
evidence and the reasonable inferences drawn from that evidence may provide
affirmative support for a finding of a causal link. La Tier v. Compag Computer
Corp., 123 S.W.3d 557, 562 (Tex. App.—San Antonio 2003, no pet.).
Circumstantial evidence establishing the requisite causal link may include:
(1) the employer’s failure to follow its usual policy and procedures in carrying
out the challenged employment actions;
(2) discriminatory treatment in comparison to similarly situated employees;
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(3) knowledge of the discrimination charge or suit by those making the adverse
employment decision;
(4) evidence that the adverse employment decision was false; and
(5) the temporal proximity between the employee’s conduct and the adverse
employment action.
Adeshile v. Metro. Transit Auth. of Harris Cnty., No. 14-12-00980-CV, 2014 WL
3734140, at *4 (Tex. App.—Houston [14th Dist.] Jan. 16, 2014, pet. denied)
(mem. op. on reh’g). We consider each of these factors in turn in weighing the
sufficiency of the evidence to support the jury’s retaliation findings.
The first two factors weigh in favor of the jury’s finding. Although there is
no evidence regarding West Point’s “usual” policy and procedures for terminating
an employee, the record reflects that at least two other male employees were not
fired when theft allegations were lodged against them. First, Demaret testified that
she investigated a parts department employee for several theft allegations. After
she investigated an allegation that this employee had stolen a transmission, she
concluded that he had done so. She also investigated an incident involving an
irregularity with a wheel and tire and determined that the employee accused had
stolen these items. Demaret brought this information to the attention of West
Point’s general manager Chris Poulos, but this employee was not fired.’ Further,
Cesca testified that a salesperson, perhaps O’Cain, had allowed a person to leave
the dealership with upgraded wheels and tires for which the dealership had not
been paid; Cesca believed that finance director McNair also may have been
involved in this transaction. None of the employees involved were disciplined for
? Although Poulos testified that this employee had not committed these thefts, Demaret
testified that he had; the jury is charged with credibility determinations and the weight to be
given a witnesses’ testimony. See City of Keller, 168 S.W.3d at 819. This parts department
employee was later fired when West Point discovered money missing from a bank bag.
13
this incident. That these employees were not discharged after committing similar
thefts to those Vinton-Duarte committed and that she was terminated after a single
theft supports the jury’s findings in response to questions 5 and 7. See id.; cf. Tex.
Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (per curiam)
(“Uniform enforcement of a reasonable absence-control provision, like the three-
day rule in this case, does not constitute retaliatory discharge.” (emphasis added)).
Next, there is ample evidence that those who made the decision to terminate
Vinton-Duarte’s employment were aware of her sexual-harassment allegations. In
fact, there was testimony that the sexual-harassment investigation was an ongoing
topic of conversation at the dealership. Poulos testified that when the theft
allegations were brought to him, he took the issue to West Point’s legal counsel
Elza Bullock, who was charged with investigating Vinton-Duarte’s sexual-
harassment complaints. Vinton-Duarte testified that she had meetings with Bullock
and communicated with him about her complaint. Poulos testified that Bullock was
made aware that McNair, the employee against whom the most serious allegation
of harassment had been lodged by Vinton-Duarte, had been the individual who
brought the allegations of theft to Poulos’s attention. At the meeting during which
Vinton-Duarte was informed of the initial theft allegation and placed on leave,
Bullock, controller Ellis,4 and general manager Poulos were present. Thus, this
evidence weighs in favor of the jury’s findings on retaliation.
As noted above, the jury specifically found that Vinton-Duarte did not
engage in misconduct that would have been the sole reason West Point legitimately
discharged her. And to the extent that the jury’s finding on theft, breach of
fiduciary duty, fraud, or conversion conflict with the jury’s findings on retaliation,
*Demaret testified that she informed Ellis about Vinton-Duarte’s sexual harassment
allegations against McNair. Further, Velasco’s notes from her investigation indicate that she
spoke with Ellis regarding Vinton-Duarte’s sexual harassment allegations.
14
West Point has not preserved this issue for appellate review. See Tex. R. Civ. P.
295; see also Lundy v. Masson, 260 S.W.3d 482, 495 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied) (“To preserve error, an objection to an incomplete or
unresponsive verdict, or conflicting
jury findings, must be made before the jury is
discharged.” (emphasis added)). Importantly, this is not a case in which the
employee admitted to wrongdoing; instead, Vinton-Duarte explicitly denied
engaging in theft and provided explanations for West Point’s theft allegations
against her. Cf Baker Hughes Oilfield Operations, Inc. v. Williams, 360 S.W.3d
15, 24 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (op. on reh’g) (where
employee admitted to violating company policy, there was no reasonable factual
basis for jury to have found company’s stated reason for termination pretextual).
Moreover, as noted above, there is evidence that other employees who had been
accused of engaging in similar misconduct (stealing items) from West Point were
not terminated. Based on this evidence, the jury reasonably could have believed
that West Point’s stated reason for Vinton-Duarte’s termination was not the sole
reason for her discharge and that she would not have been fired when she was
without having made or filed the complaint about sexual harassment. See
McMillon, 963 S.W.2d at 940.
Finally, Vinton-Duarte reported the sexual harassment on June 4, 2009; her
“official complaint” was provided to Velasco around July 14. She was notified on
August 31 that West Point was suspending her employment and was formally
notified that she had been terminated on September 17. Thus, there is a gap of
slightly over three months from her initial report of sexual harassment to her
official termination; in other words, there is a sufficiently close temporal proximity
between Vinton-Duarte’s making or filing the complaint about sexual harassment
and West Point’s discharge of Vinton-Duarte from her employment. Cf Evans v.
15
City of Houston, 246 F.3d 344, 354 (Sth Cir. 2001) (noting that time lapse of up to
four months was sufficient to satisfy retaliatory causal connection for summary
judgment purposes). This evidence militates soundly in favor of the jury's finding
that West Point retaliated against Vinton-Duarte.
In sum, we conclude that more than a scintilla of evidence supports the
jury’s finding of retaliation, as well as its finding that Vinton-Duarte did not
engage in other misconduct for which West Point would have legitimately
discharged her solely on that basis. Accordingly, we conclude that legally
sufficient evidence supports the jury’s findings on retaliation, and we overrule
West Point’s first issue.
Cc Failure to Take Prompt, Remedial Action
As part of the jury’s finding of sexual harassment in response to question
number 1, the jury determined that West Point knew or should have known of the
harassment and failed to take prompt, remedial action to eliminate the harassment.
In its second issue, West Point contends the evidence is legally insufficient to
support these two findings.
Prompt, remedial action is that which is reasonably calculated to end the
harassment. See Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606,
615 (Sth Cir. 1999). “What constitutes prompt remedial action is a fact-specific
inquiry and not every response by an employer will be sufficient to absolve the
employer of liability.” Williams-Boldware v. Denton Cnty., Tex., 741 F.3d 635,
640 (Sth Cir. 2014) (citation and internal quotation marks omitted), cert. denied
135 S. Ct. 106 (2014). If the employee establishes that the employer’s response
was not reasonably calculated to end the harassment, the employer may be liable
despite having taken remedial steps. Id.
16
Here, there is evidence from which the jury could have determined that,
once West Point was made aware of the harassment, it failed to take prompt,
remedial measures to eliminate the harassment. Vinton-Duarte first reported the
harassment to West Point in early June 2009. West Point did not begin
investigating her complaint—other than speaking with Vinton-Duarte—until
August 6, after Vinton-Duarte emailed Velasco to find out what had been done
about her complaint and informed Velasco that the touching and comments had
continued since Vinton-Duarte made her complaint. Cf McMillon, 963 S.W.2d at
939 (“When McMillon complained of her co-worker’s unwanted sexual comments
and conduct, the Department quickly investigated the allegations. The Department
put the co-worker on administrative leave while the investigation was pending.”).
Further, Vinton-Duarte repeatedly brought the amount of time it was taking to
complete the investigation to the attention of West Point.° Despite these numerous
communications, Vinton-Duarte was never given any information concerning the
5On August 6, 2009, Vinton-Duarte emailed Velasco to ask for an update on the
investigation and a date by which she could expect resolution of her complaint. In this email, she
stated, “I have tried to keep you as well informed as possible{] regarding the on-going issues
here which are still occurring on a regular basis. Nothing has changed.” (emphasis added).
Then, on August 18, Vinton-Duarte emailed Bullock and Velasco to inquire into the status or
outcome of the investigation. In this email, Vinton-Duarte stated that she met with Bullock on
August 6 and was informed it would “be a few days” before she could expect a resolution.
Vinton-Duarte explained that since the interviews had been conducted at West Point, “tension
among the employees . . . has been at an all time high” and that, despite any instructions, the
investigation “has been a constant topic of conversation.” Vinton-Duarte followed up with
another email to Bullock and Velasco on August 25, noting that “the working environment ha{d]
deteriorated immensely” and she had “become labeled as an employee to avoid at all cost.” She
further stated that the time it was taking to complete the investigation, coupled with the lack of
confidentiality, provided “a clear and perfect example” of “why the females [who] have all had
issues in the past[] are in fear of coming forth.” She stated that she brought the complaint to the
attention of the human resources department nearly three months previously and she had been
forced to continue to work “under these conditions” since then. Once again, she asked for any
information regarding the investigation. Finally, on August 28, she emailed Bullock and Velasco
again expressing her concerns and seeking communications regarding the investigation.
17
investigation, except to be told that her name, as the complainant, would have to be
revealed to those against whom she had made allegations.
Moreover, the record reflects that West Point conducted harassment training
on October 21-22, 2009, over a month after Vinton-Duarte had been terminated
and four months after she reported the harassment. And the only formal remedial
action was taken on November 20, 2009, when the dealership placed letters of
warning in the personnel files of two employees against whom Vinton-Duarte had
made allegations.° Further, it is undisputed that no final report was ever prepared
concerning Vinton-Duarte’s sexual-harassment allegations, despite West Point’s
stated policy that the “EEO officer shall issue fact findings and
recommendations as with any other [discrimination] complaint.”
Finally, Vinton-Duarte testified that she suffered retaliatory treatment after
filing her complaint: she testified that she was asked if she had “told on” anyone at
the dealership; she stated the sales people stopped bringing customers to the
aftermarket department; and she explained that Cesca stopped communicating with
her and that he told sales manager Gary LaCroix not to talk to her either. She
complained to West Point that the environment had become tense and that the
investigation was “a constant topic of conversation.” Cf Wal-Mart Stores, Inc. v.
Davis, 979 S.W.2d 30, 39 (Tex. App.—Austin 1998, pet. denied) (explaining that
similar retaliatory conduct “send[s] a message that there are negative consequences
of complaining, thereby defeating the goal of creating effective grievance
® Notably, the “warning” placed in MeNair’s file indicates that West Point was “unable to
determine if [he] made any sexually oriented comments to Ms. Duarte or subjected her to any
unwelcome touching,” despite testimony not only from Vinton-Duarte about the specific incident
in which he placed her hand on his penis, but also testimony from those who spoke with Vinton-
Duarte immediately after the incident occurred and noted that she was upset and distressed when
describing the incident. Additionally, another female employee reported that she had issues with
McNair touching her. O’Cain also had a letter placed in his personnel file because he
acknowledged that he had touched Vinton-Duarte inappropriately.
18
mechanisms”). And, importantly, the jury’s finding of retaliation against Vinton-
Duarte undermines West Point’s claim that it attempted to prevent future
harassment. See Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 525
(Sth Cir. 2001).
Based on this evidence, the jury reasonably could have determined that West
Point knew or should have known of the harassment and that it failed to take
prompt, remedial action to eliminate the harassment.’ Thus, legally sufficient
7 West Point’s actions are in stark contrast with the employer's actions in a case in which
the Austin Court of Appeals upheld a jury finding that an employer took prompt, remedial
measures. See McMillon, 963 S.W.2d at 940. In McMillon, the Department of Insurance put the
alleged harasser on administrative leave while it investigated the complaint. Jd. at 937,940 After
concluding that sexual harassment occurred, the Department placed the offender on a ninety-day
probationary period, reduced his pay by $5,000 a year, transferred him to a non-managerial
position in another division, required him to attend sexual harassment awareness training, and
required him to review the agency’s policies regarding sexual harassment. /d. The sexual
harassment complained of in McMillon did not involve any allegations of inappropriate touching.
See id.
Here, even though much of what Vinton-Duarte reported was corroborated by other
witnesses during the investigation of her complaint, West Point chose to believe those accused of
harassment and disbelicve those who reported inappropriate behavior. For example, Velasco’s
interview notes indicate that LaCroix admitted to touching Vinton-Duarte’s breast and calling
himself the “Breast Doctor.” O’Cain stated that LaCroix made comments to another female
employee about being willing to pay for a “boob job.” O’Cain further told Velasco that he had
seen salesperson Benazzouz “grab” Vinton-Duarte, that certain events “have gone over the line,”
and that he had touched Vinton-Duarte on the “high buttocks area” on a few occasions. Cesca
acknowledged that he had seen inappropriate behavior, including a Mardi Gras beads incident
involving LaCroix, in which LaCroix suggested that female employees show him their breasts in
return for Mardi Gras beads. Salesperson Perry Hicks reported that he had seen inappropriate
conduct; he had seen O’Cain touch Vinton-Duarte’s “rear,” and she told O’Cain to stop.
Salesperson Mendoza explained that he was aware of improper conduct; he'd seen people grab
Vinton-Duarte’s “butt.” He also reported that Vinton-Duarte told him about the incident with
MeNair immediately after it occurred and that another female employee had also complained
about McNair. Mendoza suggested that McNair, Benazzouz, and used car sales manager Jones
would need “a lot of training” to address their behavior. Garcia reported to Velasco that she
heard Benazzouz and McNair makc sexually explicit remarks to Vinton-Duarte and that Vinton-
Duarte told her about the incident with McNair; she stated that Vinton-Duarte was upset when
she told her about the McNair incident. Demaret reported that she had been exposed to
unwelcome touching by McNair and that her interview with Velasco could be a “career ending
conversation.” Demaret suggested that McNair should be fired for his conduct. Yet despite this
19
evidence supports the challenged jury findings regarding sexual harassment, and
we overrule West Point’s second issue.
D Faragher/Ellerth Affirmative Defense
West Point argues in issue three that it “conclusively established” its
Faragher/Ellerth defense, despite the jury’s unanimous finding to the contrary. In
response to jury question number 2, the jury found that a preponderance of the trial
evidence did not show that West Point exercised reasonable care to prevent and
correct promptly any harassment based on sex and that Vinton-Duarte
unreasonably failed to take advantage of any preventative or corrective
opportunities by her employer or to avoid harm otherwise. The first element of this
defense can be satisfied by showing that the employer had a policy against sexual
harassment in place, and it enforced the policy: See Casiano v. AT&T Corp., 213
F.3d 278, 286 (Sth Cir. 2000); Bartkowiak v. Quantum Chem. Corp., 35 S.W.3d
103, 111 (Tex. App—Amarillo 2000, no pet.).
The second prong of the defense recognizes an employee’s corresponding
duty to avoid or mitigate harm. Faragher v. City of Boca Raton, 524 U.S. 775,
805-06 (1998). “An employer may, for example, have provided a proven, effective
mechanism for reporting and resolving complaints of sexual harassment .. . . If the
plaintiff unreasonably failed to avail herself of the employer’s preventative or
remedial apparatus, she should not recover damages that could have been avoided
had she done so.” Jd. at 806-07. If the employee unreasonably fails to promptly
corroboration of Vinton-Duarte’s allegations, as noted above, the only actions West Point took
were to (1) terminate Vinton-Duarte’s employment for theft; (2) conduct company-wide sexual
harassment training several months after Vinton-Duarte’s complaint was filed; and (3) place
letters in the personnel files of McNair and O’Cain.
5 See Faragher v. Citv of Boca Raton, 524 U.S. 775, 807-08 (1998); Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).
20
report the offensive conduct, the second prong of the affirmative defense is
satisfied. Casiano, 213 F.3d at 287; Bartkowiak, 35 S.W.3d at 111. Here, as
discussed above in response to West Point’s second issue, we already have
determined that West Point did not take prompt, remedial action to eliminate the
sexual harassment. Moreover, although Vinton-Duarte did not report the sexual
harassment as required by company policy, we conclude that more.than a scintilla
of evidence supports the jury’s implied finding that the evidence did not show
Vinton-Duarte unreasonably failed to take advantage of any preventive or
corrective opportunities by her employer or to avoid harm otherwise for the
following reasons.
In addition to West Point’s failure to take prompt, remedial measures
discussed above, there is evidence from which the jury could have inferred that
many of the employees interviewed by Velasco were unfamiliar with the
company’s sexual-harassment policy; in particular, Vinton-Duarte’s supervisor
Cesca acknowledged that he failed to follow the policy himself. Further, Vinton-
Duarte stated she had witnessed other “situations” that had not been resolved at the
dealership; she noted in an email to Velasco that she did not want her complaint
“handled in the same manner as the ones in the past because (1) it hasn’t resolved
these types of issues and (2) when just those people involved in the complaint are
singled out and talked to then it becomes evident as to who made those complaints
against them.” She also stated she had “seen in the past when this had happened
and how people retaliated against those individuals.” Even Velasco admitted that
her failure to file a written report detailing the investigation was a violation of
company policy. Thus, the jury reasonably could have inferred that West Point’s
policy was not a “proven, effective mechanism for reporting and resolving
complaints of sexual harassment.” See Faragher, 524 U.S. at 806-07.
21
Additionally, there is more than a scintilla of evidence that West Point’s
management knew about and even participated in the harassment.’ As discussed in
more detail above, Vinton-Duarte made complaints about finance director McNair.
Indeed, the single most serious allegation she lodged was against McNair. Further,
Vinton-Duarte testified that, early on during her employment at the dealership, her
own manager, Cesca, saw O’Cain grab her inappropriately. Cesca failed to address
this situation appropriately; when Vinton-Duarte notified Cesca that O’Cain
refused to bring customers to her because Cesca had reprimanded him, Cesca told
her to “just ignore him” and he would “get over it.” Vinton Duarte testified that she
had informed Cesca about the harassment before this incident occurred, and he told
her “he was going to handle the situation.” But nothing changed; according to
Vinton-Duarte, she continued to be subjected to the sexually harassing comments
almost daily. The inappropriate comments were made in front of salespeople and
sales managers; everyone just “laughed it off.” Even Cesca sent her an email with
sexual material in it.
When Vinton-Duarte talked to Demaret about the ongoing harassment,
Demaret advised her that if she reported the harassment to human resources, the
“[s]hit would hit the fan.” Demaret suggested that Vinton-Duarte consider that “the
managers were aware of it; and they overlooked it; and that [Vinton-Duarte]
needed to consider, possibly eventually losing [her] job.”'° Vinton-Duarte testified
that general manager Poulos “was aware of the situation and he just turned the
other way.”
° Although much of the evidence concerning management’s knowledge of the harassment
came from Vinton-Duarte, the jury was free to credit her testimony and disbelieve the testimony
from other witnesses to the contrary. See Citv of Keller, 168 S.W.3d at 819.
Preview
Affirmed as Modified and Opinion filed May 28, 2015 Pe ee FILED Chris Danie! District Clerk Ni Oy AS MAY 2 8 2015 4 /O°RVYN Time: & Harri Texas By. Deputy In The HSourteenth Court of Appeals NO. 14-14-00059-CV RIVER OAKS L-M. INC. D/B/A WEST POINT LINCOLN MERCURY, Appellant/Cross-Appellee Vv. VERONICA VINTON-DUARTE, Appellee/Cross-Appellant On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 2010-54452 OPINION An automobile dealership employee filed a sexual-harassment complaint; shortly thereafter, she was terminated for theft. The employee sued the dealership for sexual harassment, retaliatory discharge, and defamation. The dealership counterclaimed for theft, conversion, breach of fiduciary duty, and fraud. A jury found in favor of the employee on the sexual-harassment, retaliation, and defamation claims. The jury also found in favor of the automobile dealership on its theft, conversion, breach of fiduciary duty, and fraud claims. The trial court granted judgment notwithstanding the verdict (JNOV) to the dealership on the employee’s defamation claims, but otherwise signed a judgment on the jury’s verdict. On appeal, the automobile dealership asserts the evidence is legally insufficient to: (1) support a finding that “but for” the filing of the sexual- harassment complaint, the employee would not have been fired when she was; (2) show the dealership knew or should have known of the sexual harassment and failed to take prompt remedial measures; (3) support an award of attorney’s fees; (4) support recovery of future lost earnings/employment benefits; and (5) sustain any recovery for mental anguish damages. The dealership further urges that the evidence conclusively establishes (1) that it exercised reasonable care to prevent or correct any harassing behavior and the employee unreasonably failed to avail herself of these procedures and (2) the after-acquired evidence defense to loss of future employment. Finally, the dealership contends the trial court erred in applying the Texas Labor Code damage cap per claim, rather-than per complainant. The employee urges her own issues as a cross-appellant. First, she asserts that the trial court erred in granting JNOV on her defamation claims. She further argues that there is no evidence to support the findings on the dealership’s counterclaims for theft or to support the award of attorney’s fees to the dealership. We conclude that legally sufficient evidence supports the jury’s findings on the employee’s sexual-harassment and retaliation claims, and that the evidence does not conclusively establish the dealership’s affirmative defenses. However, we agree that the trial court erred in applying the Texas Labor Code damages cap. We further determine the employee’s cross-issues lack merit. We modify the judgment to reflect the appropriate damages in light of our resolution of the damages-cap issue, and we affirm the judgment as modified. I. BACKGROUND Veronica Vinton-Duarte began working at River Oaks L-M. Inc. d/b/a West Point Lincoln Mercury (West Point) as the aftermarket sales manager in 2006.' Her immediate supervisor was the general sales manager, Bob Cesca, who reported to West Point’s general manager, Chris Poulos. Vinton-Duarte was paid a base salary plus commission, and she relied largely on vehicle salespeople bringing customers to her for aftermarket accessory sales. Several months after she started working at West Point, male co-workers began to subject her to sexual comments, including jokes about having sex with her that were told in front of other salespeople and suggestions that she dress more provocatively to increase sales. These comments and jokes became a common, almost daily, occurrence. Once, when she was kneeling to read a part number, new car salesperson Ryan O’Cain asked her to “take care of him’ because she was “already down there.” Salesperson Khalil Benazzouz joked about a dream he’d had involving Vinton-Duarte in front of her and other salespeople, in which he’d “done [Vinton-Duarte] all night long.” He also told Vinton-Duarte he “was going to do [her] so hard he would get rid of all [her] frustration.” Used car sales manager Dwight Jones also often made sexually inappropriate comments to Vinton-Duarte. When she told him she was “tired” of his comments, he responded that she didn’t know how to take a compliment. Jones also regularly kissed her hand while breathing heavily on it, which made Vinton-Duarte “very uncomfortable.” ' “Aftermarket” products include vehicle accessories that do not come with a new vehicle from the factory, but can be sold and added to the vehicle when it is purchased from the dealership. Finance director Reggie McNair regularly propositioned Vinton-Duarte for dates and sex after she mentioned that her marriage had become “complaisant.” He began asking her out and making comments, suggesting that they have “a relationship where there were no strings attached” and telling her none of his past girlfriends had “any complaints.” Despite Vinton-Duarte’s repeated refusals, McNair said he would continue to pursue her until he “closed her.” McNair made harassing comments to Vinton-Duarte, including expressing his desire to “bury [his] face between her legs.” McNair made comments and advances to her in front of other employees, including West Point managers. McNair also made comments and advances to other female employees at West Point, including two female salespersons. McNair did not stop his unwelcome comments, jokes, or solicitations; he often tried to give women at the workplace hugs and attempted to grab their buttocks. McNair frequently approached Vinton-Duarte in her office when she was alone to give her hugs. Vinton-Duarte stopped standing up when he was around in an effort to avoid his unwelcome hugs and touching. McNair asked her to hug him even when she was attempting to avoid him, and once McNair tried to physically pull her out of her chair so that he could hug her; accounting clerk Laura Garcia witnessed this interaction. As the harassment of Vinton-Duarte transitioned from comments and jokes to physical touching, she began to try to deflect attention away from herself by changing her clothing, hair, and makeup. The harassment persisted, however. O’Cain grabbed Vinton-Duarte’s buttocks as she walked by him in front of others; he even grabbed her buttocks in front of Cesca. Cesca apparently reprimanded O’Cain because the next day, O’Cain told her he had deliberately not brought some customers to her because she had gotten him into “trouble.” When Vinton-Duarte complained to Cesca, Cesca told her to “just ignore it” and that O’Cain “would get over it.” Even Cesca sent Vinton-Duarte a,sexually-themed video via company email. Some combination of comments, solicitations, or unwanted touching was an almost daily occurrence for Vinton-Duarte from 2006 to 2009. Many of these incidents involved or occurred in front of West Point’s managers, including the harassment by McNair and the touching by O’Cain that was seen by Cesca. Vinton-Duarte confided in office/accounting manager Lori Demaret many times over this time period. Demaret told her there was “different treatment between female employees and male employees.” Demaret suggested that if Vinton-Duarte ever reported the harassment to the human resources department, Vinton-Duarte would need to be careful because Vinton-Duarte could lose her job; Demaret reminded Vinton-Duarte that the management of West Point was already aware of what was happening and chose to overlook it. According to Vinton-Duarte, So, many times when I went upstairs to talk to [Demaret], I would talk to her about different instances; but after talking to her and realizing that I could possibly lose my job over it, it made me second guess starting or initiating the process, or for me to be the one that brought it all to light because I couldn’t afford to lose my job. Vinton-Duarte was also concerned about reporting the harassment because Cesca hadn’t taken it seriously. The sexual harassment culminated in an incident that occurred in December of 2008. McNair came into Vinton-Duarte’s office while she was sitting at her desk. He stood behind her and told her she didn’t understand the “effect” she had on him and asked her to give him her hand. When she did, he rubbed her hand over his “aroused penis.” She screamed and told him to get out of her office. Salesperson Ruben Mendoza heard Vinton-Duarte scream; Vinton-Duarte immediately told Mendoza what had happened. She also told Demaret about the incident shortly after it occurred; Demaret acknowledged that Vinton-Duarte was very upset when she described the incident. Demaret “warned” Vinton-Duarte that “the attitude at West Point was that, if you were going to go to Human Resources and complain about anybody, you better — you might as well just pick up your box and pack your things, because that is ultimately what would happen.” Sometime in early June 2009, Demaret told Vinton-Duarte that she had recently attended a training session. Demaret told Vinton-Duarte that Vinton- Duarte needed to go to human resources or Demaret would “because it had gotten to a point where [Demaret] could lose her job if [Demaret] didn’t report all the incidents that had been going on.” Vinton-Duarte called human resources manager Renee Velasco to report the harassment shortly thereafter and set up a meeting to discuss the incidents. After Vinton-Duarte’s initial meeting with Velasco, Velasco summarized the meeting in a way that indicated that Vinton-Duarte did not want an investigation. Vinton-Duarte quickly corrected Velasco, telling her that she wanted an investigation “done right,” as opposed to investigations in the past that hadn’t been properly conducted and hadn’t resulted in any changes. Velasco informed Vinton- Duarte that, as part of the investigation, she would have to tell the people she was investigating who had made the complaint. Vinton-Duarte was concerned because she knew she that would bring retaliation: “I knew that it would be a matter of time, that I would eventually lose my job; and I could not afford to lose my job.” More than a month after Vinton-Duarte met with Velasco, Velasco was still “working on a version of the complaint.” Vinton-Duarte was “very concemed” about the time that had passed. Velasco completed the complaint and asked Vinton-Duarte to sign it; however, Vinton-Duarte had concerns about the complaint and emailed Velasco with them. Vinton-Duarte was “disappointed” 6 because she had met with Velasco on two occasions for more than an hour each time and gave Velasco as much information as she could, but much of this information was not included in the complaint Velasco drafted. Vinton-Duarte decided to write her own report. On August 6, Vinton-Duarte met with Velasco and West Point legal representative Elza Bullock. On August 28, Bullock again met with Vinton-Duarte at West Point; he informed her that their investigation had “taken them into a different avenue,” so they were investigating some other issues. He did not provide Vinton-Duarte with any specific information regarding what the other issues were. During the period between Vinton-Duarte’s first meeting with Velasco and her August 28 meeting with Bullock, Vinton-Duarte sent several emails seeking an update on the status of the investigation; no one provided her with any updates. While the investigation was ongoing, the environment at West Point became very tense, and everyone was discussing the investigation. The salespeople had stopped bringing customers to Vinton-Duarte for aftermarket sales. Cesca stopped talking to Vinton-Duarte and told at least one other employee not to communicate with Vinton-Duarte. After Vinton-Duarte reported the harassment, “things just got worse really quickly.” Nothing was being done and Vinton-Duarte explained that the stress became unbearable. Vinton-Duarte visited the doctor; he put her on some antidepressants to help alleviate some of the stress and pressure Vinton-Duarte was undergoing. On August 31, Vinton-Duarte was called to the conference room at West Point. Chris Poulos, controller Linda Ellis, and Bullock were all there. They explained that she had been called up to answer some questions regarding a transaction. Vinton-Duarte was shown invoices from a transaction involving a toolbox, cargo carrier, and cargo bag that had occurred in March of 2009; Vinton- Duarte explained she could not remember the details of this transaction. She was asked why she had coded the items on the invoices to the particular vehicles. Vinton-Duarte explained that she didn’t know and that it had “obviously... been a mistake.” Vinton-Duarte asked for more information, but was not permitted to see the transaction files. She was allowed to look through her own records in her office, but found no information on this transaction. Bullock told her she was being “released”; she was instructed to clean out her office, turn in her company vehicle, and leave the dealership. During the following days, Vinton-Duarte received calls and messages from her former co-workers, who had been told she was terminated for theft. Mendoza specifically told her that West Point’s management told him about the alleged theft and that West Point was going to press charges for theft against Vinton-Duarte. Vinton-Duarte was “devastated” that West Point was accusing her of theft; she felt it was a “slap in the face.” Her employment termination created many problems in her life; she began having marital issues and the “‘stress was unbearable.” She and her husband separated several times, although he stayed in the house with her. She and her husband discussed bankruptcy because there were bills they couldn’t pay. Her electricity and water were turned off “a couple times,” and it was hard to explain the financial difficulties to her children. Vinton-Duarte was never contacted to further discuss or explain the matter; instead, she received her official termination letter on September 17, indicating she had been terminated for theft. West Point later “discovered” several other alleged thefts. First, West Point asserted that Vinton-Duarte stole four plasma televisions. Although West Point was invoiced for these TVs, on each invoice, Vinton-Duarte marked out “plasma TV” and wrote in “DVD player.” The transaction files showed that each of the vehicles associated with these invoices had aftermarket DVD players installed in them. Further, Vinton Duarte explained that the actual plasma TVs in question had been ordered for use as a sales promotion give-away. West Point’s documents showed that the promotional TVs were delivered to West Point’s parts department, and Cesca acknowledged that several TVs were given away as a sales promotion through the parts department. West Point also accused Vinton-Duarte of stealing upgraded wheels and tires in connection with a vehicle purchased by West Point accounting employee Laura Garcia’s husband. Finally, West Point accused Vinton-Duarte of stealing a gaming system, but the dealership’s documents showed that the system was installed in a customer’s vehicle, and the customer paid West Point for the system. All of the theft allegations were brought to the attention of West Point’s management by McNair after Vinton-Duarte lodged her sexual-harassment complaint; McNair apparently had never reported any prior allegations of theft to anyone at the dealership. Vinton-Duarte filed suit against West Point for sexual harassment, retaliation, and defamation. West Point counterclaimed for theft, conversion, breach of fiduciary duty, and fraud based on the alleged thefts described above. After a five-day trial, the jury unanimously found in favor of Vinton-Duarte on her sexual-harassment and retaliation claims. The jury further found that West Point had defamed Vinton-Duarte. But the jury also found in West Point’s favor on its counterclaims against Vinton-Duarte, awarding West Point damages only for theft of the toolbox, cargo carrier, cargo bag, and upgraded wheels and tires. The jury was dismissed without any stated objections to the verdict. The trial court granted JNOV on Vinton-Duarte’s defamation claim. The trial court otherwise entered judgment on the jury’s verdict, awarding actual damages (plus pre-judgment interest) of $739,623.88, as found by the jury on Vinton-Duarte’s sexual-harassment and retaliation claims, including offsets for the statutory cap and the damages on West Point’s counterclaims. The trial court also awarded Vinton-Duarte attorney’s fees of $146,350.00, offset by the award of fees to West Point on its Texas Theft Liability Act counterclaim. This appeal timely followed. II. WEST POINT’S SUFFICIENCY ISSUES Most of the parties’ issues concern sufficiency of the evidence. Thus, we begin by setting forth the appropriate standard of review for these issues. A Standard of Review In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the finding, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). When the appellant attacks the legal sufficiency of a finding on which it did not have the burden of proof, it must demonstrate that there is no evidence to support the finding. Jd. at 810. When a party attacks the legal sufficiency of an adverse finding on an issue on which it has the burden of proof, it must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v, Francis, 46 §.W.3d 237, 241 (Tex. 2001). We must first examine the record for evidence that supports the finding; if there is no evidence to support the finding, then we examine the entire record to determine if the contrary position is established as a matter of law. See id. We may sustain the issue only if the contrary position is conclusively established. Jd. We may not sustain a legal sufficiency, or “no evidence,” point unless the record demonstrates that: (1) there is a complete absence of a vital fact; (2) the court is barred by the rules of law or of evidence from giving weight to the only 10 evidence offered to prove a vital fact; (3) the evidence to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller, 168 S.W.3d at 810. The jury is the only judge of witness credibility and the weight to give to a witness’s testimony. See id. at 819. B. Retaliation Claim In its first issue, West Point challenges the sufficiency of the evidence to support Vinton-Duarte’s retaliation claim. Specifically,, West Point asserts there is no evidence that “but for” the filing of her complaint, Vinton-Duarte would not have been discharged when she was. West Point further asserts that there was no evidence that the stated reason for her termination — theft of property — was false. Vinton-Duarte brought her claim for retaliation under the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code Ann. § 21.055 (West, Westlaw through 2013 3d C. Sess.).” Here, in question number 5, the jury was charged as follows regarding Vinton-Duarte’s retaliation claim: Did West Point discharge Veronica Vinton-Duarte because of Veronica Vinton-Duarte’s making or filing of a complaint about sexual harassment by West Point? Veronica Vinton-Duarte must establish that West Point’s discharge of her from her employment, if any, would not have occurred when it did without her making or filing of a complaint about sexual harassment by West Point, if any. There may be more than one cause for an employment decision. Veronica Vinton-Duarte need not establish that her making or filing of a complaint about sexual harassment by West Point, if any, was the sole cause of her discharge from employment, if any. > We may follow federal statutes and cases in applying the TCHRA. See Tex. Labor Code Ann. § 21.001; AutoZone, Inc. v. Reyes, 272 $.W.3d 588, 592 (Tex. 2008) (noting that, by enacting the TCHRA, the Texas Legislature “intended to correlate state law with federal law in employment discrimination cases”). ll Answer “Yes” or “No.” The jury answered in the affirmative. In question number 7, the jury was also asked, predicated on its answer to this question, “Did Veronica Vinton-Duarte engage in misconduct for which West Point would have legitimately discharged her solely on that basis?” The jury answered this question, “No.” At the charge conference, West Point did not object to the form of either of these questions. We thus measure the sufficiency of the evidence supporting the jury’s answers to these questions using the charge given. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). As question numbers 5 and 7, excerpted above, correctly reflect, Vinton-Duarte was required to establish that West Point’s discharge of Vinton-Duarte would not have occurred when it did without her making or filing of a sexual-harassment complaint, and Vinton-Duarte was not required to establish that her making or filing of a sexual-harassment complaint was the sole cause of West Point’s discharge of Vinton-Duarte. See Herbert v. City of Forest Hills, 189 S.W.3d 369, 377 (Tex. App.—Fort Worth 2006, no pet.); McMillon v, Tex. Dep’t of Ins., 963 S.W.2d 935, 940 (Tex. App.—Austin 1998, no pet.). Where, as here, there is no direct evidence of causation, circumstantial evidence and the reasonable inferences drawn from that evidence may provide affirmative support for a finding of a causal link. La Tier v. Compag Computer Corp., 123 S.W.3d 557, 562 (Tex. App.—San Antonio 2003, no pet.). Circumstantial evidence establishing the requisite causal link may include: (1) the employer’s failure to follow its usual policy and procedures in carrying out the challenged employment actions; (2) discriminatory treatment in comparison to similarly situated employees; 12 (3) knowledge of the discrimination charge or suit by those making the adverse employment decision; (4) evidence that the adverse employment decision was false; and (5) the temporal proximity between the employee’s conduct and the adverse employment action. Adeshile v. Metro. Transit Auth. of Harris Cnty., No. 14-12-00980-CV, 2014 WL 3734140, at *4 (Tex. App.—Houston [14th Dist.] Jan. 16, 2014, pet. denied) (mem. op. on reh’g). We consider each of these factors in turn in weighing the sufficiency of the evidence to support the jury’s retaliation findings. The first two factors weigh in favor of the jury’s finding. Although there is no evidence regarding West Point’s “usual” policy and procedures for terminating an employee, the record reflects that at least two other male employees were not fired when theft allegations were lodged against them. First, Demaret testified that she investigated a parts department employee for several theft allegations. After she investigated an allegation that this employee had stolen a transmission, she concluded that he had done so. She also investigated an incident involving an irregularity with a wheel and tire and determined that the employee accused had stolen these items. Demaret brought this information to the attention of West Point’s general manager Chris Poulos, but this employee was not fired.’ Further, Cesca testified that a salesperson, perhaps O’Cain, had allowed a person to leave the dealership with upgraded wheels and tires for which the dealership had not been paid; Cesca believed that finance director McNair also may have been involved in this transaction. None of the employees involved were disciplined for ? Although Poulos testified that this employee had not committed these thefts, Demaret testified that he had; the jury is charged with credibility determinations and the weight to be given a witnesses’ testimony. See City of Keller, 168 S.W.3d at 819. This parts department employee was later fired when West Point discovered money missing from a bank bag. 13 this incident. That these employees were not discharged after committing similar thefts to those Vinton-Duarte committed and that she was terminated after a single theft supports the jury’s findings in response to questions 5 and 7. See id.; cf. Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (per curiam) (“Uniform enforcement of a reasonable absence-control provision, like the three- day rule in this case, does not constitute retaliatory discharge.” (emphasis added)). Next, there is ample evidence that those who made the decision to terminate Vinton-Duarte’s employment were aware of her sexual-harassment allegations. In fact, there was testimony that the sexual-harassment investigation was an ongoing topic of conversation at the dealership. Poulos testified that when the theft allegations were brought to him, he took the issue to West Point’s legal counsel Elza Bullock, who was charged with investigating Vinton-Duarte’s sexual- harassment complaints. Vinton-Duarte testified that she had meetings with Bullock and communicated with him about her complaint. Poulos testified that Bullock was made aware that McNair, the employee against whom the most serious allegation of harassment had been lodged by Vinton-Duarte, had been the individual who brought the allegations of theft to Poulos’s attention. At the meeting during which Vinton-Duarte was informed of the initial theft allegation and placed on leave, Bullock, controller Ellis,4 and general manager Poulos were present. Thus, this evidence weighs in favor of the jury’s findings on retaliation. As noted above, the jury specifically found that Vinton-Duarte did not engage in misconduct that would have been the sole reason West Point legitimately discharged her. And to the extent that the jury’s finding on theft, breach of fiduciary duty, fraud, or conversion conflict with the jury’s findings on retaliation, *Demaret testified that she informed Ellis about Vinton-Duarte’s sexual harassment allegations against McNair. Further, Velasco’s notes from her investigation indicate that she spoke with Ellis regarding Vinton-Duarte’s sexual harassment allegations. 14 West Point has not preserved this issue for appellate review. See Tex. R. Civ. P. 295; see also Lundy v. Masson, 260 S.W.3d 482, 495 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (“To preserve error, an objection to an incomplete or unresponsive verdict, or conflicting jury findings, must be made before the jury is discharged.” (emphasis added)). Importantly, this is not a case in which the employee admitted to wrongdoing; instead, Vinton-Duarte explicitly denied engaging in theft and provided explanations for West Point’s theft allegations against her. Cf Baker Hughes Oilfield Operations, Inc. v. Williams, 360 S.W.3d 15, 24 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (op. on reh’g) (where employee admitted to violating company policy, there was no reasonable factual basis for jury to have found company’s stated reason for termination pretextual). Moreover, as noted above, there is evidence that other employees who had been accused of engaging in similar misconduct (stealing items) from West Point were not terminated. Based on this evidence, the jury reasonably could have believed that West Point’s stated reason for Vinton-Duarte’s termination was not the sole reason for her discharge and that she would not have been fired when she was without having made or filed the complaint about sexual harassment. See McMillon, 963 S.W.2d at 940. Finally, Vinton-Duarte reported the sexual harassment on June 4, 2009; her “official complaint” was provided to Velasco around July 14. She was notified on August 31 that West Point was suspending her employment and was formally notified that she had been terminated on September 17. Thus, there is a gap of slightly over three months from her initial report of sexual harassment to her official termination; in other words, there is a sufficiently close temporal proximity between Vinton-Duarte’s making or filing the complaint about sexual harassment and West Point’s discharge of Vinton-Duarte from her employment. Cf Evans v. 15 City of Houston, 246 F.3d 344, 354 (Sth Cir. 2001) (noting that time lapse of up to four months was sufficient to satisfy retaliatory causal connection for summary judgment purposes). This evidence militates soundly in favor of the jury's finding that West Point retaliated against Vinton-Duarte. In sum, we conclude that more than a scintilla of evidence supports the jury’s finding of retaliation, as well as its finding that Vinton-Duarte did not engage in other misconduct for which West Point would have legitimately discharged her solely on that basis. Accordingly, we conclude that legally sufficient evidence supports the jury’s findings on retaliation, and we overrule West Point’s first issue. Cc Failure to Take Prompt, Remedial Action As part of the jury’s finding of sexual harassment in response to question number 1, the jury determined that West Point knew or should have known of the harassment and failed to take prompt, remedial action to eliminate the harassment. In its second issue, West Point contends the evidence is legally insufficient to support these two findings. Prompt, remedial action is that which is reasonably calculated to end the harassment. See Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 615 (Sth Cir. 1999). “What constitutes prompt remedial action is a fact-specific inquiry and not every response by an employer will be sufficient to absolve the employer of liability.” Williams-Boldware v. Denton Cnty., Tex., 741 F.3d 635, 640 (Sth Cir. 2014) (citation and internal quotation marks omitted), cert. denied 135 S. Ct. 106 (2014). If the employee establishes that the employer’s response was not reasonably calculated to end the harassment, the employer may be liable despite having taken remedial steps. Id. 16 Here, there is evidence from which the jury could have determined that, once West Point was made aware of the harassment, it failed to take prompt, remedial measures to eliminate the harassment. Vinton-Duarte first reported the harassment to West Point in early June 2009. West Point did not begin investigating her complaint—other than speaking with Vinton-Duarte—until August 6, after Vinton-Duarte emailed Velasco to find out what had been done about her complaint and informed Velasco that the touching and comments had continued since Vinton-Duarte made her complaint. Cf McMillon, 963 S.W.2d at 939 (“When McMillon complained of her co-worker’s unwanted sexual comments and conduct, the Department quickly investigated the allegations. The Department put the co-worker on administrative leave while the investigation was pending.”). Further, Vinton-Duarte repeatedly brought the amount of time it was taking to complete the investigation to the attention of West Point.° Despite these numerous communications, Vinton-Duarte was never given any information concerning the 5On August 6, 2009, Vinton-Duarte emailed Velasco to ask for an update on the investigation and a date by which she could expect resolution of her complaint. In this email, she stated, “I have tried to keep you as well informed as possible{] regarding the on-going issues here which are still occurring on a regular basis. Nothing has changed.” (emphasis added). Then, on August 18, Vinton-Duarte emailed Bullock and Velasco to inquire into the status or outcome of the investigation. In this email, Vinton-Duarte stated that she met with Bullock on August 6 and was informed it would “be a few days” before she could expect a resolution. Vinton-Duarte explained that since the interviews had been conducted at West Point, “tension among the employees . . . has been at an all time high” and that, despite any instructions, the investigation “has been a constant topic of conversation.” Vinton-Duarte followed up with another email to Bullock and Velasco on August 25, noting that “the working environment ha{d] deteriorated immensely” and she had “become labeled as an employee to avoid at all cost.” She further stated that the time it was taking to complete the investigation, coupled with the lack of confidentiality, provided “a clear and perfect example” of “why the females [who] have all had issues in the past[] are in fear of coming forth.” She stated that she brought the complaint to the attention of the human resources department nearly three months previously and she had been forced to continue to work “under these conditions” since then. Once again, she asked for any information regarding the investigation. Finally, on August 28, she emailed Bullock and Velasco again expressing her concerns and seeking communications regarding the investigation. 17 investigation, except to be told that her name, as the complainant, would have to be revealed to those against whom she had made allegations. Moreover, the record reflects that West Point conducted harassment training on October 21-22, 2009, over a month after Vinton-Duarte had been terminated and four months after she reported the harassment. And the only formal remedial action was taken on November 20, 2009, when the dealership placed letters of warning in the personnel files of two employees against whom Vinton-Duarte had made allegations.° Further, it is undisputed that no final report was ever prepared concerning Vinton-Duarte’s sexual-harassment allegations, despite West Point’s stated policy that the “EEO officer shall issue fact findings and recommendations as with any other [discrimination] complaint.” Finally, Vinton-Duarte testified that she suffered retaliatory treatment after filing her complaint: she testified that she was asked if she had “told on” anyone at the dealership; she stated the sales people stopped bringing customers to the aftermarket department; and she explained that Cesca stopped communicating with her and that he told sales manager Gary LaCroix not to talk to her either. She complained to West Point that the environment had become tense and that the investigation was “a constant topic of conversation.” Cf Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 39 (Tex. App.—Austin 1998, pet. denied) (explaining that similar retaliatory conduct “send[s] a message that there are negative consequences of complaining, thereby defeating the goal of creating effective grievance ® Notably, the “warning” placed in MeNair’s file indicates that West Point was “unable to determine if [he] made any sexually oriented comments to Ms. Duarte or subjected her to any unwelcome touching,” despite testimony not only from Vinton-Duarte about the specific incident in which he placed her hand on his penis, but also testimony from those who spoke with Vinton- Duarte immediately after the incident occurred and noted that she was upset and distressed when describing the incident. Additionally, another female employee reported that she had issues with McNair touching her. O’Cain also had a letter placed in his personnel file because he acknowledged that he had touched Vinton-Duarte inappropriately. 18 mechanisms”). And, importantly, the jury’s finding of retaliation against Vinton- Duarte undermines West Point’s claim that it attempted to prevent future harassment. See Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 525 (Sth Cir. 2001). Based on this evidence, the jury reasonably could have determined that West Point knew or should have known of the harassment and that it failed to take prompt, remedial action to eliminate the harassment.’ Thus, legally sufficient 7 West Point’s actions are in stark contrast with the employer's actions in a case in which the Austin Court of Appeals upheld a jury finding that an employer took prompt, remedial measures. See McMillon, 963 S.W.2d at 940. In McMillon, the Department of Insurance put the alleged harasser on administrative leave while it investigated the complaint. Jd. at 937,940 After concluding that sexual harassment occurred, the Department placed the offender on a ninety-day probationary period, reduced his pay by $5,000 a year, transferred him to a non-managerial position in another division, required him to attend sexual harassment awareness training, and required him to review the agency’s policies regarding sexual harassment. /d. The sexual harassment complained of in McMillon did not involve any allegations of inappropriate touching. See id. Here, even though much of what Vinton-Duarte reported was corroborated by other witnesses during the investigation of her complaint, West Point chose to believe those accused of harassment and disbelicve those who reported inappropriate behavior. For example, Velasco’s interview notes indicate that LaCroix admitted to touching Vinton-Duarte’s breast and calling himself the “Breast Doctor.” O’Cain stated that LaCroix made comments to another female employee about being willing to pay for a “boob job.” O’Cain further told Velasco that he had seen salesperson Benazzouz “grab” Vinton-Duarte, that certain events “have gone over the line,” and that he had touched Vinton-Duarte on the “high buttocks area” on a few occasions. Cesca acknowledged that he had seen inappropriate behavior, including a Mardi Gras beads incident involving LaCroix, in which LaCroix suggested that female employees show him their breasts in return for Mardi Gras beads. Salesperson Perry Hicks reported that he had seen inappropriate conduct; he had seen O’Cain touch Vinton-Duarte’s “rear,” and she told O’Cain to stop. Salesperson Mendoza explained that he was aware of improper conduct; he'd seen people grab Vinton-Duarte’s “butt.” He also reported that Vinton-Duarte told him about the incident with MeNair immediately after it occurred and that another female employee had also complained about McNair. Mendoza suggested that McNair, Benazzouz, and used car sales manager Jones would need “a lot of training” to address their behavior. Garcia reported to Velasco that she heard Benazzouz and McNair makc sexually explicit remarks to Vinton-Duarte and that Vinton- Duarte told her about the incident with McNair; she stated that Vinton-Duarte was upset when she told her about the McNair incident. Demaret reported that she had been exposed to unwelcome touching by McNair and that her interview with Velasco could be a “career ending conversation.” Demaret suggested that McNair should be fired for his conduct. Yet despite this 19 evidence supports the challenged jury findings regarding sexual harassment, and we overrule West Point’s second issue. D Faragher/Ellerth Affirmative Defense West Point argues in issue three that it “conclusively established” its Faragher/Ellerth defense, despite the jury’s unanimous finding to the contrary. In response to jury question number 2, the jury found that a preponderance of the trial evidence did not show that West Point exercised reasonable care to prevent and correct promptly any harassment based on sex and that Vinton-Duarte unreasonably failed to take advantage of any preventative or corrective opportunities by her employer or to avoid harm otherwise. The first element of this defense can be satisfied by showing that the employer had a policy against sexual harassment in place, and it enforced the policy: See Casiano v. AT&T Corp., 213 F.3d 278, 286 (Sth Cir. 2000); Bartkowiak v. Quantum Chem. Corp., 35 S.W.3d 103, 111 (Tex. App—Amarillo 2000, no pet.). The second prong of the defense recognizes an employee’s corresponding duty to avoid or mitigate harm. Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998). “An employer may, for example, have provided a proven, effective mechanism for reporting and resolving complaints of sexual harassment .. . . If the plaintiff unreasonably failed to avail herself of the employer’s preventative or remedial apparatus, she should not recover damages that could have been avoided had she done so.” Jd. at 806-07. If the employee unreasonably fails to promptly corroboration of Vinton-Duarte’s allegations, as noted above, the only actions West Point took were to (1) terminate Vinton-Duarte’s employment for theft; (2) conduct company-wide sexual harassment training several months after Vinton-Duarte’s complaint was filed; and (3) place letters in the personnel files of McNair and O’Cain. 5 See Faragher v. Citv of Boca Raton, 524 U.S. 775, 807-08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998). 20 report the offensive conduct, the second prong of the affirmative defense is satisfied. Casiano, 213 F.3d at 287; Bartkowiak, 35 S.W.3d at 111. Here, as discussed above in response to West Point’s second issue, we already have determined that West Point did not take prompt, remedial action to eliminate the sexual harassment. Moreover, although Vinton-Duarte did not report the sexual harassment as required by company policy, we conclude that more.than a scintilla of evidence supports the jury’s implied finding that the evidence did not show Vinton-Duarte unreasonably failed to take advantage of any preventive or corrective opportunities by her employer or to avoid harm otherwise for the following reasons. In addition to West Point’s failure to take prompt, remedial measures discussed above, there is evidence from which the jury could have inferred that many of the employees interviewed by Velasco were unfamiliar with the company’s sexual-harassment policy; in particular, Vinton-Duarte’s supervisor Cesca acknowledged that he failed to follow the policy himself. Further, Vinton- Duarte stated she had witnessed other “situations” that had not been resolved at the dealership; she noted in an email to Velasco that she did not want her complaint “handled in the same manner as the ones in the past because (1) it hasn’t resolved these types of issues and (2) when just those people involved in the complaint are singled out and talked to then it becomes evident as to who made those complaints against them.” She also stated she had “seen in the past when this had happened and how people retaliated against those individuals.” Even Velasco admitted that her failure to file a written report detailing the investigation was a violation of company policy. Thus, the jury reasonably could have inferred that West Point’s policy was not a “proven, effective mechanism for reporting and resolving complaints of sexual harassment.” See Faragher, 524 U.S. at 806-07. 21 Additionally, there is more than a scintilla of evidence that West Point’s management knew about and even participated in the harassment.’ As discussed in more detail above, Vinton-Duarte made complaints about finance director McNair. Indeed, the single most serious allegation she lodged was against McNair. Further, Vinton-Duarte testified that, early on during her employment at the dealership, her own manager, Cesca, saw O’Cain grab her inappropriately. Cesca failed to address this situation appropriately; when Vinton-Duarte notified Cesca that O’Cain refused to bring customers to her because Cesca had reprimanded him, Cesca told her to “just ignore him” and he would “get over it.” Vinton Duarte testified that she had informed Cesca about the harassment before this incident occurred, and he told her “he was going to handle the situation.” But nothing changed; according to Vinton-Duarte, she continued to be subjected to the sexually harassing comments almost daily. The inappropriate comments were made in front of salespeople and sales managers; everyone just “laughed it off.” Even Cesca sent her an email with sexual material in it. When Vinton-Duarte talked to Demaret about the ongoing harassment, Demaret advised her that if she reported the harassment to human resources, the “[s]hit would hit the fan.” Demaret suggested that Vinton-Duarte consider that “the managers were aware of it; and they overlooked it; and that [Vinton-Duarte] needed to consider, possibly eventually losing [her] job.”'° Vinton-Duarte testified that general manager Poulos “was aware of the situation and he just turned the other way.” ° Although much of the evidence concerning management’s knowledge of the harassment came from Vinton-Duarte, the jury was free to credit her testimony and disbelieve the testimony from other witnesses to the contrary. See Citv of Keller, 168 S.W.3d at 819.