AUSTIN - Fossil doesn’t have to defend itself against a lawsuit claiming the retailer “knew or should have known” about an accused sexual harasser the company fired soon after receiving reports of his misconduct, the Texas Supreme Court ruled.
Reversing an appellate court, the state’s highest court said there was no evidence the employee told anyone in position to act about her harassment, except for one disputed email she says she sent through an anonymous reporting system. Fossil investigated and fired the accused harasser after managers got word via a second employee about his behavior.
Nicole Harris worked briefly in Fossil Group’s Frisco, Texas store from late 2018 to May, 2019. She quit on May 4, saying in an email to managers she was too stressed by working three jobs and going to school. After she quit, she sued Fossil for sexual harassment, claiming assistant store manager Leland Brown had looked up her social media profile and “sent her obscene and sexually explicit videos and photos of himself with sexually suggestive messages.”
Harris never notified the store manager, Carey Zaborowicz, about the harassment but says she sent an anonymous email through the internal reporting system. At the same time, Brown allegedly harassed another employee, who notified a “Third Key” assistant manager, who in turn notified Zaborowicz, the store manager. Zaborowicz reached out to the second employee in May, after she declined to speak with him.
Harris quit her job on May 4, meanwhile, sending an email to store management explaining how she was “exhausted and putting a lot of stress on myself trying to juggle 3 jobs and finish school to graduate.” After Harris quit, she spoke with the second employee about Brown’s behavior. The information got back to Zaborowicz, who immediately called Harris, who described her harassment. Brown was fired at the end of the month.
Harris then sued Fossil, claiming she “began efforts to formally report” Brown in April and sent an email through Fossil’s anonymous reporting system but “received no response.”
A trial judge granted Fossil summary judgment for lack of evidence but the Fifth Court of Appeals reversed, ruling Harris’s testimony showed Fossil knew or should have known about Brown’s misconduct. The Texas Supreme Court granted review and reversed in a June 14 by Justice John P. Devine.
On appeal, Fossil argued there was no evidence Harris reported Brown through the anonymous reporting system in late April 2019. But even assuming she did, the Supreme Court said, “there is no genuine issue of material fact that Fossil failed to take prompt remedial action.” Another employee definitely did notify human resources about the problem on May 9, Brown was fired by the end of the month and didn’t work with Harris or the second employee during that time period.
Harris resigned in early May without giving Fossil a reasonable time to investigate her complaint while she was still employed, the court ruled, and Harris didn’t claim she was demoted or retaliated against before she quit. While in some circumstances employers must take action even before they complete a harassment investigation, the court said, Harris didn’t present any evidence she was harassed by Brown on the four days she worked between when Fossil knew of the allegations and when she quit.
Nor did Brown provide any evidence Fossil “knew or should have known” about Brown’s misconduct before late April. Most of the behavior consisted of social-media messages outside of Fossil’s view and Harris herself never notified any managers except through her disputed anonymous email.