Colleen Paige Simmons v. Top Deck, Inc.

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00222-CV
__________________

COLLEEN PAIGE SIMMONS, Appellant

V.

TOP DECK, INC., Appellee

__________________________________________________________________

On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A200814-C
__________________________________________________________________

MEMORANDUM OPINION

Colleen Simmons (“Simmons”) sued her former employer, Top Deck, Inc.

(“Top Deck”), for employment discrimination, alleging that a Top Deck employee,

Justin Bufford (“Bufford”), sexually harassed her. Simmons based her harassment

claim on two grounds: “quid pro quo sexual harassment” and “hostile work

environment” harassment. See Tex. Lab. Code Ann. § 21.051(1). Simmons further

alleged that Top Deck, through Bufford, retaliated against her “because she opposed

1
unlawful discrimination[.]” See id. § 21.055(1). Top Deck moved for a traditional

and no-evidence summary judgment, and the trial court granted the Motion.

In a single appellate issue, Simmons contends that genuine issues of material

fact preclude the summary judgment; she therefore asks us to reverse the trial court’s

judgment and remand the matter to the trial court. Since we conclude that no genuine

issues of material fact exist regarding Simmons’s claims, we affirm.

I. Background Information and Summary Judgment Evidence

Top Deck supplies temporary labor to paper mills. Simmons testified that she

understood the company was operated by owner, J.W. Dalton, his sons, Jake Dalton

(“Dalton”) and Bufford, and Bufford’s sister, Jamey MacFarlane.

In April 2019, Top Deck hired Simmons to work as a hole watch or fire watch,

and Simmons worked in that capacity for approximately one month. Simmons

contends that Dalton led her to believe that the work would be steady, with “lots of

overtime,” but Top Deck contends it assigned work based upon the requests of its

clients on an “as needed” basis. Simmons contends that Top Deck stopped giving

her work assignments because she did not comply with Bufford’s express request

that she send him a photograph of her breasts.

In August 2019, Simmons filed a formal charge of sex discrimination with the

EEOC alleging that Top Deck, through Bufford, sexually harassed her and retaliated

against her for opposing Bufford’s conduct. The EEOC investigated and dismissed

2
the charge, regarding an alleged violation of Title VII, finding the evidence was not

sufficient to continue the investigation. The Texas Workforce Commission Civil

Rights Division accepted that finding and then issued a Notice of Complainant’s

Right to File a Civil Action.

When the Texas Commission on Human Rights issued the Notice of

Complainant’s Right to File Civil Action, she did so, alleging the following: 1) that

she was not provided steady work because she refused to provide sexual favors for

Justin Bufford, a Top Deck supervisory employee; 2) that Top Deck subjected her

to a hostile work environment because her submission to Bufford’s pervasive and

severe sexual harassment altered the terms or conditions of her employment; and 3)

that Top Deck retaliated against her (by giving her no work assignments) when she

opposed the alleged discriminatory practices. Top Deck sought and received a

summary judgment on all Simmons’s claims, and this appeal ensued.

A. Colleen Simmons’s Contentions

Simmons testified in her deposition that she was a convicted felon who had

recently been released from the SAFP program 1 and was seeking a job when she was

hired by Top Deck. Simmons testified that she and Bufford reported to the same

probation officer, and that officer told Simmons that Top Deck was hiring and

suggested that Simmons apply for work there. Simmons did so and she was hired to

1
SAFP is an acronym for Substance Abuse Felony Program.
3
work as a fire watch person and worked for Top Deck for about one month, from

April 8, 2019, to May 8, 2019.

According to Simmons, Bufford made inappropriate comments to her during

the hiring process. Specifically, Simmons claims Buford asked her whether her

breasts were real, mentioned that his wife had undergone breast augmentation

surgery, and made a comment about the feel of natural breasts. Simmons testified

she considered these comments inappropriate, but she agrees she did not voice any

opposition to them by speaking to either Bufford, her job supervisor, Chris Hantz,

Top Deck’s Human Resources Department, or Top Deck management.

Simmons and Bufford communicated by text message about her job

assignments. Many of these messages are related to work schedules and

transportation and are dated in the April-May 2019 time period. In July 2019,

Simmons and Bufford exchanged text messages that contain sexual content or

innuendo. While Simmons testified that she could not remember the dates of the text

messages, Simmons admits she voluntarily joined in the back and forth banter.

Simmons acknowledged that Bufford did not proposition her for sexual activity. In

addition, she admitted that she participated in the sexual banter when she offered

information about her chest size without a request from Bufford in one of the July

2019 exchanges:

Q. What -- what motivated you to send him a text telling him your chest
size?
4
A. Well, I mean, like I said before, I was just -- in the beginning I was
kind of just playing – just going with it. You know what I mean? I was
just kind of -- I don’t really know.

During July 2019, and after Simmons failed to show up for a job, Bufford

admits he made some requests to Simmons to send him photographs of her breasts

as a part of the sexual banter with Simmons. In one series of text messages, the two

of them discuss his sex life with his wife, and Bufford told Simmons that he would

be willing to pay for “a blow job.” At one point, Simmons states, “it’s hard[,]” and

Bufford responds, “not yet haha.” Also in July 2019, as part of the voluntary sexual

banter, Simmons requested Bufford to “get me a job[,]” Bufford responds, “Well

you don’t have to wait [to] send those [pictures of her breasts] anytime lol[.]”2 In

another exchange, Simmons states “[n]eed a [expletive] job bad[,]” and Bufford

replies “I know wish I had something. I need a job too lol[.]” Simmons then states,

“Lmao [laughing my a.. off] I know what that JOB is lol[,]” to which Bufford

answers, “involves blowing lol[.]” In other messages, Bufford told Simmons, “[w]ell

send boob pics when you ask for work next time lol[,]” and “[s]ee I remembered you

without a boob pic or bj so be happy lol[.]” Simmons admits she told Bufford her

bra size. In her deposition, Simmons testified that Bufford’s comments made her

feel “like scum” and “this big[.]” However, Simmons then admitted when asked:

2
Bufford confirmed that “lol” stood for “laughing out loud.”
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“But you [Simmons] never placed a call to the company office to ask questions?”

Simmons stated, “No, I hired a lawyer.”

She went on to admit in cross-examination during her deposition that she had

decided not to go back to work for Top Deck on June 10, 2019, which is when she

failed to show up for an assignment made by Bufford. She explained that, before

June 11, 2019, she was no longer going to work there when asked, “Well, but you’ve

[Simmons] already told me repeatedly that if Top Deck had offered you a job you

weren’t going to show up.” Simmons responded, “Right.”

As for the timing of the sexual text messaging episodes, Simmons stated in

her deposition “I don’t know what date he was texting….” Simmons acknowledged

that she did not tell Bufford to keep the communication professional and did not

complain to Top Deck management about Bufford’s alleged sexual harassment.

Simmons agreed that Top Deck provided her with a copy of its Employee Handbook

& Safety Manual and understood Top Deck had a policy against sexual harassment

and a complaint procedure directing employees to report sexual harassment to their

supervisor. Simmons also admitted that:

Q. And you understood that if you had a complaint relating to sexual
harassment, you were supposed to take that to your supervisor?

A. Right, which was in my -- I thought was Jake. I mean, I’ve been on
the plant jobs before, and I know what you’re supposed to do. You’re
supposed to turn it in to HR, you know, if anybody (sic) sexual nature
or anything like that. I’ve been through that before.

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B. Top Deck’s Defenses

In its summary judgment motion, Top Deck advances multiple defensive

theories. Top Deck’s arguments include: 1) Bufford never made or withheld work

assignments based on sexual favors; 2) any arguably offensive statements made by

Buford were “nothing more than ‘simple teasing,’” and were not sufficiently severe

nor pervasive to render the work environment hostile; and 3) that Bufford was not a

supervisor. Top Deck also argues the affirmative defense set forth in Faragher v.

City of Boca Raton and Burlington Industries, Inc. v. Ellerth, applies to Simmons’s

harassment claim because Simmons unreasonably failed to take advantage of Top

Deck’s reasonable efforts to prevent and remedy sexual harassment. 3 See Faragher

v. City of Boca Raton, 524 U.S. 775, 807–08 (1998); Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 765 (1998). Top Deck further contends that Simmons did not

engage in a protected activity and her retaliation claim should also fail as a matter of

law.

Top Deck relies on affidavits and depositions of Bufford, MacFarlane,

Simmons, and Project Manager Chris Hantz, as well as its records, data

compilations, and documentation showing relevant text messages. Simmons’s

3
“One express purpose of the state Act is to ‘provide for the execution of the
policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.’
Sexual harassment is a recognized cause of action under Title VII and the TCHRA,
and Texas courts look to analogous federal law in applying the state Act.” Waffle
House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010) (citations omitted).
7
deposition is summarized above, and we summarize Top Deck’s remaining evidence

below.

1. Justin Bufford’s Deposition

When Bufford began working for Top Deck, he worked first as a painter, then

as a millwright. In 2019, when Simmons worked for Top Deck, Bufford was a

recruiter, and he still held this position at the time of his March 2022 deposition. As

a recruiter, Bufford seeks people to fill needed positions. In 2019, he reported to

Ashley Steiner, the HR Manager. Top Deck’s job description for an HR Recruiter,

which Bufford verified was accurate, summarized the job and listed the essential

duties and responsibilities as follows [spelling and punctuation as original]:

Job Summary
The main responsibility for this role is to source and identify craft
specific talent, fill all job openings, assure fair compensation practices
and perform general administrative duties for the HR manager and
employees as duties are assigned.

Essential Duties and Responsibilities:

1. Recruit craft specific talent desired by Managers for certain
projects.
2. Post positions on social media to bring in applicants.
3. Ensure that personnel requisitions are completed in a timely
manner.
4. Obtain job descriptions from Managers.
5. Work with the Manager’s [sic] to determine the required craft
and how many workers are needed.
6. Manage the requisition log and applicant/interview/hire
reports.
7. Ensure all paperwork is filled out correctly.
8. Set up drug screens
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9. Ensure employee training has been completed and is up to
date.
10. Administer immigration paperwork.
11. Ensure a list of job applicants are [sic] sent over to Manager’s
[sic] for approval and final employee list.
12. Enter new hire information into system and send file over to
the HR Manager for entry approval.

Bufford testified that the hiring process includes paperwork and a drug screen.

He stated that if the paperwork was complete and the drug test results were negative,

the job applicant was hired. Bufford recalled Simmons applying for work at Top

Deck. Since Bufford knew that the Evadale paper mill needed hole watch and fire

watch workers, he hired Simmons. From April 8, 2019, through May 8, 2019,

Simmons worked several days at the paper mill according to Bufford’s reading of

Top Deck’s time records. It was Bufford who scheduled Top Deck employees

[including Simmons] to work there. Bufford testified that the superintendent at the

Evadale job site where Simmons was scheduled to work was Chris Hantz. His job

was to write the names of the personnel he was scheduling for the next day, take a

photo with his cell phone, and send it to Chris Hantz, the superintendent who

ultimately decided who would be on his crew.

Bufford confirmed that Simmons had been provided the employee handbook,

as evidenced by her signature. He testified that he has read the handbook, including

the portion addressing sexual harassment, but he played no part in drafting that

policy and has received no other training in sexual harassment prevention. Bufford

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testified that neither Simmons nor any other Top Deck employee received sexual

harassment prevention training besides being required to read and acknowledge

understanding of the handbook. He could not state whether Simmons had received

the five-page sexual harassment policy initially issued September 22, 2015, but

assumed that she had been given one even though he had not seen her signed

acknowledgement of receipt.

When asked about the text messages between himself and Simmons, Bufford

verified the content of the screen shots. He conceded that some of his text messages

with Simmons were unprofessional and said he deleted some of the messages so that

his wife would not see them. Bufford admitted that the text messages were

“[s]omewhat” sexual and “unprofessional” but denied realizing that he was violating

Top Deck’s sexual harassment policy. Bufford testified that it was Simmons, not he,

who brought up the subject of her breasts during one of the July 2019 sexual texting

episodes. He admits that, once she brought it up, he asked her about it.

2. Justin Bufford’s Affidavit

In addition to the material addressed in his deposition excerpt, Bufford’s

affidavit denies that he touched Simmons, requested sexual favors from her, or that

he asked whether her breasts were real. He also denied telling Simmons that his wife

had “fake boobs.” Bufford further denied that Simmons ever expressed any offense

at Bufford’s words or conduct. Although Bufford acknowledged that, in July 2019,

10
he exchanged text messages with Simmons, he interpreted those exchanges as “silly,

casual banter” rather than as offensive or objectionable harassment.

Bufford denied having supervisory authority on behalf of Top Deck, in that

he “did not give Simmons any instructions about how to do her job at the WestRock

paper mill.” He denied excluding Simmons from a job in DeRidder, Louisiana for

any improper reason, such as her gender or her decision not to cooperate with his

“alleged requests for sexual favors[.]” Instead, according to Bufford, Top Deck had

short notice of the DeRidder job, which required helpers rather than hole watch

employees like Simmons. Bufford further explained that Simmons had not yet

received site orientation for the DeRidder facility, and she could not go to Louisiana

without her probation officer’s consent. Bufford told Simmons at the time that he

assigned “the first 5 I’d heard from recently” to the DeRidder job. Several of those

who were assigned were females.

On August 1, 2019, the date Top Deck received Simmons’s discrimination

charge, Bufford’s supervisor, Ms. Steiner, demanded to see Bufford’s phone. She

printed the text messages between Bufford and Simmons. She also instructed

Bufford to write a statement about the interactions between Bufford and Simmons,

which he did. In his August 2, 2019 statement, Bufford indicated, among other things

set out in his deposition and affidavit, that he remembered Simmons, stating that he

told her “see I remembered you even after our personal conversations[,]” although

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Bufford’s original text message to Simmons reads “[s]ee I remembered you without

a boob pic or bj so be happy lol[.]”

Several days later, Steiner advised Bufford that he had not sexually harassed

Simmons but his text exchanges with her were unprofessional. Bufford’s work area

was temporarily relocated so that Top Deck personnel could monitor his conduct;

Top Deck also required Bufford to complete additional sexual harassment training.

3. Chris Hantz’s Affidavit

In his affidavit, Hantz states that from April 1, 2019, through August 31, 2019,

he worked for Top Deck as the project superintendent at the WestRock paper mill in

Evadale. In his capacity as project superintendent, Hantz, rather than Bufford,

supervised all Top Deck personnel working at the paper mill. Hantz stated that an

HR recruiter “plays no part in” directing or evaluating employees, and lacked the

authority to promote, demote or terminate any Top Deck employees or to determine

their pay. Hantz did, however, acknowledge that Bufford’s role required him to

“locate people available and willing to fill the positions for the project.” Bufford also

was “permitted to consider new applicants or assign people previously hired who

were coming off projects then winding down.” According to Hantz, Top Deck’s

procedures did not require Bufford to assign personnel to project jobs in any

particular order.

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Hantz described Top Deck’s personnel decisions as dependent on its

customers’ needs at any given time. For example, he stated that a paper mill

performing a maintenance shutdown might ask Top Deck to provide scaffold

builders, millwrights, or other skilled craftsmen. It also might ask Top Deck to

provide support personnel, such as helpers, laborers, or hole watches. These

employees are hired on a temporary basis as dictated by the project scope and

duration. The WestRock paper mill in Evadale was the sole paper mill for which Top

Deck provided hole watch or fire watch services during the summer of 2019 and it

has not provided those services since losing the contract in August 2019.

Hantz stated that he had the duty to hire, fire or discipline the employees at

the project under his supervision—not Bufford. Hantz stated, and identified in the

documents, that his cell phone number was given to all employees, both verbally and

in writing, informing the employees to report to him if they had “any problems” on

the job. Hantz further stated that despite Simmons having his mobile telephone

number, she “never contacted [him] to make any complaints of any kind about Justin

Bufford[,]” and he was unaware of allegations that Bufford had discriminated

against Simmons or others. According to Hantz, “Simmons was assigned to work on

six of the seven projects requiring hole watches during the shutdown.” The seventh

project “overlapped with a project [Simmons] already was assigned to work.”

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4. Jamey MacFarlane’s Affidavit

In her affidavit, McFarlane states that she has been Top Deck’s office manager

since 2009, and she provides an overview of Top Deck’s business practices

including its sexual harassment policy. She authenticated job descriptions for HR

Recruiter (Bufford’s position) and fire watch/hole watch (Simmons’s position).

Among other duties for Bufford, his job duties provided that he should “[e]nsure a

list of job applicants are sent over to Manager’s for approval and final employee

list.” She confirmed portions of Hantz’s affidavit regarding Simmons’s failure to

complain and Bufford’s lack of supervisory authority. MacFarlane noted that the job

in DeRidder, Louisiana, required only seven helpers and no hole watchers or fire

watchers. McFarlane further noted that, of the seven chosen for the DeRidder job,

four had longer work histories with Top Deck than did Simmons and there was no

requirement to assign persons in any particular order. McFarlane confirmed the

sexual harassment policies of Top Deck were supposed to be reviewed by all

employees and supervisors and included the following wording at that time:

Sexual and Other Unlawful Harassment

It is the objective of Top Deck, Inc. to provide a working environment
free from discrimination and conduct commonly referred to as sexual
harassment.

The E.E.O.C. (Equal Employment Opportunity Commission) has
provided a broad definition of sexual harassment. It is general in nature
and may not always be clear when evaluating everyday situations.

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“Unwelcome sexual advances, requests for sexual favors, or other
verbal or physical conduct of a sexual nature constitute sexual
harassment when

1. Submission to such conduct is made either explicitly or
implicitly a term or condition of an individual’s
employment,

2. Submission to or rejection of such conduct by an
individual is used as a basis for employment decisions
affecting such individual, or

3. Such conduct has the purpose or effect of unreasonably
interfering with an individual’s work performance or
creating an intimidating, hostile, or offensive working
environment.”

Sexual harassment refers to behavior inappropriate in the workplace
because it is offensive, unwelcome behavior which would not occur but
for the sex of the offended person. Both sexual harassment, and
accusations of sexual harassment, are disrupting to the work
environment.

[sic] access to perform their job functions. Copies will not be
distributed to any third party unless mandated to do so by a court of
law.

5. Other Summary Judgment Exhibits

Top Deck also provided authenticated excerpts of its Employee Handbook

and Safety Manual, Simmons’s and Bufford’s job descriptions, as well as other

documentation indicating Simmons was the third-highest-earning employee in her

job classification during the month she worked. Top Deck asserts that it did not

discriminate against her or retaliate against her as she has alleged.

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Bufford’s job description reflects that he was responsible for “fill[ing] all job

openings[.]” The included portion of the employee handbook quotes Top Deck’s

sexual harassment policy set forth above.

Top Deck’s summary judgment evidence includes another sexual harassment

policy dated September 22, 2015. This policy states:

If an employee believes that he or she has been subject to sexual
harassment or any unwelcome sexual attention, he or she may address
the situation directly and immediately to the harasser, if possible. If the
inappropriate conduct does not cease, or if the employee is unable to or
uncomfortable with addressing the alleged harasser directly, he or she
should report the incident to his or her own supervisor or manager, or
to the human resource (HR) director. It is helpful, but not required, to
provide a written record of the date, time and nature of the incident(s)
and the names of any witnesses.

Unlike the Employee Handbook and Safety Manual, however, the September 2015

sexual harassment policy is not signed by Simmons. However, she stated in her

deposition that she knew she was supposed to report sexual harassment to her

supervisor, or to “HR,” because she had worked in this type of employment before.

Bufford’s job description as an HR Recruiter is set out above. Simmons’s job

description as a hole watch reads as follows [set forth as in the original]:

Hole Watch
Hole watch is part of the work associated with confined space work,
such as work inside storage tanks or tight spaces between two
bulkheads. The team member on hole watch maintains communication
with the personnel in the confined space, or hole. In case of an
emergency, the worker on hole watch maintains situational awareness
and raises the alarm about the emergency. For example, if weather
conditions deteriorate and pose a hazard, the worker on hole watch can
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advise personnel in the hole and assist them in leaving the confined
space.

Essential Duties and Responsibilities:

1. Assist welders in surrounding space to ensure safety of employees
and equipment
2. Adhere to safety standards as well as daily prep/debrief meeting
3. Watch out for fire hazards in the workplace while work is performed
by other employees.
4. Maintain the conditions and requirements stated on the safety
permit.
5. Keep flammable materials from ignition sources.
6. In the event of fire, extinguish it immediately or turn a fire alarm on.
7. Stop operations if you find any hazardous condition.
8. Maintain a lookout for small fires started by sparks and bits of slag
9. Sounding alarm, and if possible, attempt to control the fire, should
one develop
10. Maintain communication with personnel in the confined space or
hole
11. Maintain situational awareness and raise alarm about an emergency

Requirements

1. Must be able to work up to 7 days a week; and/or 8-12 hour a day
Shift flexibility; days or nights
2. Over the age of 18 High School Graduate/GED
3. Must be able to pass a Drug & Alcohol Test screening
4. In addition to the above, the position MAY require that
employee/contractor be able to: Ascend to heights up to 50 feet or
greater using stairs or a ladder
5. Work in a confined space
6. Able to wear the required PPE for extended hours in various types
of environmental conditions
7. Stand for a minimum of 2 hours or sit without leaving post until
relieved by another attendant.
8. Kneel, crouch or crawl in internal and external environment
9. Have excellent vision and hearing
10.Must be able to follow client written and verbal requirement

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II. Standard of Review

We review summary judgment orders de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). When, as here, the trial court’s order

does not specify the basis of its decision, we must affirm the judgment if any of the

movant’s theories are meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473

(Tex. 1995). When both no-evidence and traditional grounds for summary judgment

are asserted, we first review the trial court’s order under the no-evidence standard.

See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Werth v.

Johnson, 294 S.W.3d 908, 909 (Tex. App.—Beaumont 2009, no pet.).

To prevail on a no-evidence summary judgment, the movant must allege that

no evidence exists to support one or more essential elements of a claim for which

the non-movant bears the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Barnes

v. Walsh, No. 09-20-00212-CV, 2023 WL 2417974, at *3 (Tex. App.—Beaumont

Mar. 9, 2023, no pet.) (mem. op.). A no-evidence motion may not be conclusory but

must instead give fair notice to the non-movant as to the specific element of the non-

movant’s claim that is being challenged. See Timpte Indus., Inc. v. Gish, 286 S.W.3d

306, 310–11 (Tex. 2009). To defeat a no-evidence motion, the non-movant must

then present evidence raising a genuine issue of material fact on the challenged

elements. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006);

Barnes, 2023 WL 2417974, at *3. We view the evidence in the light most favorable

18
to the non-movant. Ridgway, 135 S.W.3d at 601. A fact issue exists where there is

more than a scintilla of probative evidence. See Buck v. Palmer, 381 S.W.3d 525,

527 (Tex. 2012) (per curiam); see also Tex. R. Civ. P. 166a(i). More than a scintilla

of evidence exists if the evidence rises to a level that would allow reasonable and

fair-minded people to differ in their conclusions as to the existence of a vital fact.

See Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352 S.W.3d 191,

196 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Ridgway, 135 S.W.3d

at 601).

To prevail on a traditional motion for summary judgment, a movant must

establish that no genuine issue of material fact exists so that the movant is entitled

to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein

& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); and see Sw.

Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Summary judgment is

appropriate if the movant conclusively negates at least one essential element of the

plaintiff’s claim. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). Only

when the movant meets its initial burden, does the burden shift to the plaintiff to

present evidence raising a genuine issue of material fact. See Energen Res. Corp. v.

Wallace, 642 S.W.3d 502, 514 (Tex. 2022) (citations omitted); Lujan v. Navistar,

Inc., 555 S.W.3d 79, 84 (Tex. 2018).

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“When reviewing a summary judgment, we take as true all evidence favorable

to the nonmovant, and we indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005) (citations omitted). “The appellate court must affirm the summary

judgment if any one of the movant’s theories has merit.” Id. (citation omitted). We

will therefore consider whether any grounds asserted by Top Deck support the

summary judgment.

III. Quid Pro Quo Harassment

A. Texas Labor Code Applicable Provision

Section 21.051 of the Texas Labor Code states:

An employer commits an unlawful employment practice if because of
race, color, disability, religion, sex, national origin, or age the
employer:

(1) fails or refuses to hire an individual, discharges an
individual, or discriminates in any other manner against an
individual in connection with compensation or the terms,
conditions, or privileges of employment; or

(2) limits, segregates, or classifies an employee or applicant
for employment in a manner that would deprive or tend to
deprive an individual of any employment opportunity or
adversely affect in any other manner the status of an
employee.

Tex. Lab. Code Ann. § 21.051(1), (2).

Courts recognize two types of harassment: “(1) quid pro quo harassment, in

which the harasser demands sexual favors as a condition for granting employment
20
or its benefits, or (2) harassment that creates a hostile or offensive work

environment.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 806 (Tex.

2018) (Boyd, J., dissenting).

The elements of a quid pro quo harassment claim are: “(1) [a] supervisor (2)

because of sex (3) subjects an employee to (4) unwelcome conduct that (5) affects a

tangible aspect of the employment relationship.” Wal-Mart Stores, Inc. v. Itz, 21

S.W.3d 456, 470 (Tex. App.—Austin 2000, pet. denied) (citations omitted).

In the context of an employment discrimination claim, supervisory status is

not necessarily limited to the authority to hire, fire, or discipline an employee. See

Vance v. Ball State Univ., 570 U.S. 421, 434–35 (2013). Instead, a person is

considered a supervisor “if he or she is empowered by the employer to take tangible

employment actions against” the target of the harassment. Id. at 424. The Vance

court defined “tangible employment action” as “a significant change in employment

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

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

at 429 (quoting Ellerth, 524 U.S. at 761). In most cases, a tangible employment

action is an action that inflicts direct economic harm. See Ellerth, 524 U.S. at 762.

B. Analysis

Top Deck’s Motion for Summary Judgment states that Simmons has

presented “no supporting evidence of any conditioned request and no related adverse

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employment action.” Top Deck further argues that Bufford was not a supervisor,

thus negating the initial criterion for quid pro quo liability. We examine the evidence

as to each element to determine whether Simmons has “produce[d] summary

judgment evidence raising a genuine issue of material fact.” See Tex. R. Civ. P.

166a(i).

Top Deck contends that Bufford was not a supervisor because he lacked the

authority to terminate, promote, demote, or discipline employees and lacked the

power to write performance reviews or determine employees’ pay rates. Top Deck

also argues that Bufford did not direct Simmons’s work at the paper mill.

Assuming without deciding that Bufford lacked the power to do any of these

things, the definition of “supervisor” in a discrimination case does not necessarily

require the authority to terminate, promote, demote, or discipline the employee or

direct the employee at work. Rather, if Bufford could assign Simmons to a lower-

paying project or if Bufford could decide to assign employees other than Simmons

to a project, Bufford could be considered a supervisor under the Vance definition of

“supervisor.” See Vance, 570 U.S. at 431.

Bufford’s job description as HR recruiter states that Bufford was responsible

for “fill[ing] all job openings[]” and “assur[ing] fair compensation practices[.]”

Hantz’s affidavit confirms Bufford’s authority to recommend Top Deck employees

for certain job assignments. This ability to fill job openings and recommend

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employees to projects gave Bufford a degree of control over who filled the job

openings and also affected how much they worked. Bufford accordingly could have

been considered a supervisor under the Vance standard. See id. This evidence

constitutes more than a scintilla of evidence that Bufford was a supervisor and

therefore is sufficient to raise a fact issue on this point. See Tex. R. Civ. P. 166a(i).

Top Deck concedes that Bufford sent Simmons several text messages

requesting pictures of her breasts in July 2019. However, Simmons testified that she

does not know the dates of the voluntary exchanges of text messages of a sexual

nature between her and Bufford and those text messages themselves are not dated.

Simmons testified that her cell phone “got smashed” and was accidentally destroyed

after she retrieved and emailed several selected text messages of a sexual nature to

her lawyer a couple of weeks before July 30, 2019. In her deposition, Simmons was

unable to say when the text messages of a sexual nature were exchanged saying “I

don’t know what date he was texting me dude or whatever.” But she indicated that

she talked to a friend who suggested she talk to a lawyer shortly after she and Bufford

exchanged the text messages. She further testified that she talked to her lawyer a

couple of weeks before July 30, 2019. Bufford’s recollection is that the text messages

of a sexual nature were made some time in July 2019 after the June 10, 2019 date

that Simmons had failed to show up for her one-day assignment Bufford had

scheduled for her to work at Evadale. Simmons stated in her deposition that she did

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not show up for her work assignment at Evadale on June 10, 2019, because she had

decided she was not going to work for Top Deck anymore:

Q. But after June -- after June 11th you weren’t really trying to get a job, were
you?

A. Well, I mean, at that time in my life I was willing to just work whatever,
you know.

Q. Well, but you’ve already told me repeatedly that if Top Deck had offered
you a job you weren’t going to show up.

A. Right.

Even after viewing this evidence in the light most favorable to Simmons, there

is no indication that the text messages of a sexual nature that were exchanged

between Simmons and Bufford were related to Buford’s failure to offer Simmons

work or that they were related to Simmons’s decision to terminate her employment

on June 10, 2019. Therefore, there is no evidence of quid pro quo sexual harassment

based upon the evidence provided by Simmons in support of her quid pro quo

harassment claim. Ellerth, 524 U.S. at 761 (a tangible employment action constitutes

a significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits). The text messages which definitely contained sexual

content which may indeed have been inappropriate resulted in no significant changes

in the job assignments because the evidence demonstrates the text message

conversations occurred after Simmons had already decided she was never going to
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work for Top Deck and were after she stopped working for Top Deck. Even though

Simmons claims a causal connection between the text messaging and her

assignments, the undisputed evidence was that Bufford offered her yet another

assignment after June 11, 2019, and after the allegedly offensive text messages, but

Simmons failed to appear a second time for that assignment. Therefore, there is no

evidence that Simmons was adversely affected in her employment because of the

sexual text messaging. Id.

To the extent that Simmons contends she was not assigned work because she

claims that, in her second and final personal meeting with Bufford on or about April

4, 2019, he asked her about her breasts in person and whether they were real, the

claim is also unsupported by the evidence. Assuming the statements were made to

her, Simmons was immediately sent on a fire watch/hole watch job in Evadale and

was assigned steady work through April and into the month of May when the

temporary job terminated. Therefore, even if Bufford made the statements Simmons

claimed, there is no evidence that the statements adversely affected her assigned

work and standing alone those allegations cannot constitute an adverse employment

action. Id. Simmons claims that Bufford failed to assign her to jobs in DeRidder,

Louisiana, and that was an adverse employment action, but the evidence shows that

Bufford told Simmons that he assigned “the first 5 I’d heard from recently[.]” Buford

also expressed concerns that, at that time, he did not know whether she had

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permission from her probation officer to leave the state and go to Louisiana. Finally,

the evidence shows that the DeRidder assignments were done before the text

messaging incidents and could not be caused by or related to those messages.

Simmons has failed to establish a genuine issue of material fact that there was an

adverse employment action and she failed to meet the essential elements of a quid

pro quo claim.

IV. Hostile Work Environment Harassment

As set forth above, the Texas Labor Code and applicable case law prohibit

harassment that creates a hostile work environment. See Tex. Lab. Code Ann. §

21.051; see also Fossil Grp., Inc. v. Harris, 691 S.W.3d 874, 880–81 (Tex. 2024).

A. Applicable Law

Evidence of a hostile work environment consists of evidence of the following

elements: “(1) [the] 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.” Fossil

Grp., 691 S.W.3d at 880–81. Faragher, 524 U.S. at 780 (holding an employer

vicariously liable for sexual harassment by a supervisor, subject to certain defenses).

In Faragher, the Supreme Court specifically held:

[We] adopt the following holding in this case and in Burlington
Industries, Inc. v. Ellerth, ante, p. __, also decided today. An employer
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is subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with immediate
(or successively higher) authority over the employee. When no tangible
employment action is taken, a defending employer may raise an
affirmative defense to liability or damages, subject to proof by a
preponderance of the evidence, see Fed. Rule. Civ. Proc. 8(c). The
defense comprises two necessary elements: (a) that the employer
exercised reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise. While proof that
an employer had promulgated an antiharassment policy with complaint
procedure is not necessary in every instance as a matter of law, the need
for a stated policy suitable to the employment circumstances may
appropriately be addressed in any case when litigating the first element
of the defense. And while proof that an employee failed to fulfill the
corresponding obligation of reasonable care to avoid harm is not limited
to showing an unreasonable failure to use any complaint procedure
provided by the employer, a demonstration of such failure will
normally suffice to satisfy the employer’s burden under the second
element of the defense. No affirmative defense is available, however,
when the supervisor’s harassment culminates in a tangible employment
action, such as discharge, demotion, or undesirable reassignment.

Id. at 807–08.

The Faragher defense provides that, in cases where there is no adverse

employment action, an employer may avoid liability for alleged sexual harassment

from a hostile work environment if the employer exercised reasonable care to

prevent and correct promptly any sexually harassing behavior and the plaintiff

employee unreasonably failed to take advantage of any preventive or corrective

opportunities provided by the employer or to otherwise avoid harm. Id. at 807.

Employer liability may still arise from the employer’s negligence if it knew or

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should have known of the harassment and “fail[ed] to take prompt remedial action

to stop it.” Fossil Grp., 691 S.W.3d at 881 (citations omitted).

B. Analysis

We found as explained above that Ms. Simmons failed to establish she

experienced an adverse employment action related to the alleged sexual comments

or text messages. That said, we now turn to whether Top Deck has established its

affirmative defense under the holding in Faragher. See Faragher at 807–08. The

first prong of the two-prong test is whether the employer took reasonable care to

prevent and correct promptly any sexually harassing behavior by having a policy

and procedure in place to prevent it. Id. The undisputed evidence shows that Top

Deck had a clear policy in place, that was acknowledged by Simmons, identifying,

and prohibiting sexual harassment. Simmons acknowledged that she was aware of

the policy. This evidence meets the first prong of the Faragher test so that both the

employer and the employees are engaged in preventing sexual harassment. Id. at

808.

Since Top Deck had a policy in place which was required to be reviewed and

understood by each employee and supervisor, under the second prong of Faragher,

if the employee feels there is a hostile environment, the employee should make a

report to the employer through proper channels. Top Deck’s employee handbook

specifically stated that the employee should report complaints of sexual harassment

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to the harassing party, or the immediate supervisor, or to the Human Resources

Department. The phone number for the Human Resources Department was included

in the written document. In addition, Simmons’s immediate supervisor, as she

acknowledged, for the entire time she worked jobs for Top Deck was Chris Hantz.

She agreed that she had his cell phone number from her first day on the job site. She

acknowledged that virtually every morning briefing at the jobsite Mr. Hantz told the

employees that, if they had any problems, to call his cell phone and she never called

him or spoke to him about the sexual harassment. Simmons admitted she never

contacted Human Resources to make a complaint against Bufford for sexual

harassment even though she knew, from prior experience, that it was the proper

procedure she should undertake if there was sexual harassment. Simmons admitted

she never complained to Bufford that he was sexually harassing her, nor told him to

stop. In fact, she engaged in and even initiated sexually inappropriate remarks and

banter with Bufford in July 2019—nearly one month after she had already decided

she was not going to work there and had failed to show up for assigned work on two

occasions. Based upon the Faragher affirmative defense, as pleaded by Top Deck,

and the failure of Simmons to rebut the defense, there is no genuine issue of material

fact that Simmons failed to bring a complaint of sexual harassment, if she considered

it such, to the attention of anyone at Top Deck. Id. Accordingly, the trial court did

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not err in granting summary judgment for Top Deck. We overrule Simmons’s

appellate argument as to the Faragher affirmative defense.

V. Retaliation

As with quid pro quo and hostile work environment harassment, it is an

unlawful employment practice to retaliate against a person who opposes a

discriminatory practice or otherwise exercises his or her rights under the Texas

Commission on Human Rights Act. See Tex. Lab. Code Ann. § 21.055(1).

A. Applicable Law

A successful retaliation claim includes evidence of the following three

elements: (1) the employee engaged in an activity protected by the Texas

Commission on Human Rights Act, (2) the employee experienced a material adverse

employment action, and (3) the adverse employment action is causally linked to the

protected activity. See Alamo Heights Indep. Sch. Dist., 544 S.W.3d at 782 (listing

elements of a retaliation claim). To show causation, “the employee must show that

the decisionmaker responsible for the discriminatory act knew of the employee’s

previous complaints and was motivated by the making of those complaints.” Ibezim

v. Tex. Dep’t of Health, No. 03-03-00308-CV, 2004 WL 1574488, at *6 (Tex.

App.—Austin July 15, 2004, no pet.) (mem. op.) (citation omitted). “‘[P]rotected

opposition must at least alert an employer to the employee’s reasonable belief that

unlawful discrimination is at issue.”’ Exxon Mobil Corp. v. Rincones, 520 S.W.3d

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572, 586 (Tex. 2017) (quoting Brown v. United Parcel Serv., Inc., 406 F. Appx. 837,

840 (5th Cir. 2010)).

B. Analysis

In Simmons’s Response to the Motions for Summary Judgment and in her

appellate brief, Simmons contends that by refusing Bufford’s requests, she opposed

his discrimination and thereby engaged in protected activity. Top Deck, conversely,

argues that Simmons did not oppose discrimination, as “oppose” is contemplated by

the TCHRA, because she admittedly did not tell either Bufford or Top Deck

management that Bufford’s comments were unwelcome. We agree with Top Deck.

Simmons’s reliance on Crawford v. Metro. Gov’t of Nashville is misplaced.

See 555 U.S. 271, 277 (2009) (discussing the meaning of “oppose”). We do not read

Crawford to say that silently opposing discrimination is sufficient to constitute

protected activity. See id. Instead, Crawford requires a degree of activity, rather than

inactivity, to oppose discrimination under the TCHRA. See id. at 276. The Crawford

court approvingly cited the dictionary definition of “oppose” as meaning “[t]o resist

or antagonize . . .; to contend against; to confront; resist; withstand[.]” Id. at 276

(citation omitted). Indeed, as explained in Faragher, the purpose of the legislation

was to establish a framework which would encourage employers to proactively act

to prevent discrimination in the workplace by establishing policies for discovering

and rectifying any such discriminatory acts immediately and within the confines of

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the immediate situation. See Faragher at 807-08. Simmons’ admissions that she

never attempted to report any sexual harassment, if it occurred, undermines the intent

of the law as designed. In this case, Simmons’s behavior mitigates against her claims

of retaliation.

Even viewing Simmons’s responses to Bufford’s comments in the light most

favorable to her, we do not equate Simmons’s failure to send Bufford a photograph

of her chest as her effort to “oppose” the harassment as that term is contemplated in

Crawford. See Crawford at 276. Additionally, the evidence in the record shows

Simmons willfully participated in the sexual banter by sending her own text

messages to Bufford.

Simmons did not oppose Bufford’s alleged harassment within the meaning of

the TCHRA. See Tex. Lab. Code Ann. § 21.055(1). Having determined that

Simmons did not raise a fact issue as to one element of her retaliation claim, we need

not address the remaining elements of retaliation. Tex. R. App. P. 47.1.

We overrule Simmons’s appellate argument as to retaliation.

VI. Conclusion

Simmons failed to raise a genuine issue of material fact sufficient to defeat

Top Deck’s Amended Traditional and No-Evidence Motion for Summary Judgment

as to Simmons’s quid pro quo and hostile work environment harassment claims, as

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well as her claim of retaliation. The trial court did not err in granting the summary

judgment and the judgment of the trial court is therefore affirmed.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on July 27, 2023
Opinion Delivered December 12, 2024

Before Golemon, C.J., Johnson and Wright, JJ.

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