Full opinion text
MEMORANDUM ORDER PRADO, District Judge. This lawsuit presents bizarre and troubling problems to the Court, both factually and legally. The evidence adduced at trial included allegations of surreptitious recording of conversations, false written statements created by a party plaintiff and signed as the statement of an impartial witness, a vicious child custody battle where the bargaining chips were continued participation in the lawsuit for an award of custody, and allegations of sexual harassment and a cover-up by top management officials at Church’s Fried Chicken. In addition, the lawyers representing the parties got involved in the mud slinging. Numerous motions for sanctions were filed by the Defendants, including one raised during the trial itself, and heated charges and counter-charges of dishonesty occurred during the course of the trial. A final factor complicating the trial was conflict of interest problems on both sides of the lawsuit which necessitated the 11th hour withdrawal and substitution of attorneys. Despite this heated skirmishing the case proceeded to trial on November 30, 1987 and was concluded December 7,1987. This memorandum opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. On its face, the case tried seems simple enough. The two remaining party plaintiffs, Belinda Valdez and Jorge Torres, bring suit pursuant to Title VII for sexual harassment and wrongful termination, along with various pendent state law claims, against Church’s Fried Chicken as a corporation, and Jerry Bailey, Jerry Estrada, Abel Salazar and Marcial Leal individually. For purposes of clarity the Court will address the claims of each Plaintiff in order. I. CLAIMS OF BELINDA VALDEZ A. Retaliation Under 42 U.S.C. § 2000e-3 In the Agreed Pretrial Order filed November 18, 1987, Plaintiff claims she was terminated for filing a charge with the Equal Employment Opportunity Commission. This claim was abandoned by Plaintiff at the trial’s commencement. Defendant Church’s Fried Chicken has filed a separate motion seeking sanctions under Rule 11 of the Federal Rules of Civil Procedure for Plaintiff’s failure to drop this logically impossible claim at an earlier time. The Court will address this request for sanctions by separate order. B. State Law Assault 1. Liability of Jerry Estrada Although the allegations in the Pretrial Order are not nearly as clear as they should be, Defendants were on notice that the same alleged conduct which gives rise to the sexual harassment claim under Title VII is also the basis for Plaintiff’s state law assault claim against Jerry Estrada individually. Defendant Church’s strenuously objects to Plaintiff’s presentation of the assault claim at trial on the grounds that this claim was not specifically raised in Plaintiff’s Fourth Amended Complaint or in the Pretrial Order. Defendant’s cite Mapco, Inc. v. Pioneer Corp., 447 F.Supp. 143 (N.D.Tex.), aff'd, 615 F.2d 297 (5th Cir.1978), for the proposition that failure to include a claim in any of the pleadings or in the Pretrial Order mandates a denial of the claim. While there is mandatory language in the opinion, the Mapco case relies principally on Marble v. Batten & Co., 36 F.R.D. 693 (D.D.C.1964). In Marble, the court denied amendment of the pretrial order at trial and stated that “[i]t is only in the exceptional case that the pretrial order may be amended after the trial has begun.” Id. at 695. Despite this almost compulsory language, the rationale for Marble’s holding is that Rule 16 is designed to prevent prejudice to the defendant because of lack of notice or unfair surprise. Rule 16(e) of the Federal Rules of Civil Procedure provides in part that “[t]he order following a final pretrial conference shall be modified only to prevent manifest injustice.” The decision to allow any modification of the final pretrial order is within the sound discretion of the district court. E.g., Allen v. United States Steel Corp., 665 F.2d 689, 696 (5th Cir.1982) (decision to strike claim not abuse of discretion). In this case there can be no serious argument that Defendants did not have notice of the gravaman of Plaintiff’s state law assault claim or were unfairly suprised at trial. Although Plaintiff failed to specifically plead the claim and may still be subject to sanctions under Rule 16(f), the factual allegations which support Plaintiff’s Title VII claim are identical to the facts supporting the assault claim. The Court finds that Defendants’ readiness at trial to controvert the factual allegations of the Title VII claim meant they were also prepared to defend against the assault claim. Furthermore, before the trial commenced, the Court advised the Defendants that it would allow them to re-open the record should they believe any trial amendments to Plaintiff’s claims caught them by surprise. None of the Defendants have taken advantage of this offer. In terms of the legal issues presented by the assault claim, which are different from the Title VII claim, the Court has invited the parties to submit extensive post-trial briefing on a variety of issues and the parties have done so. In this case there can be no finding of unfair surprise or lack of notice of the assault claim. All of the cases cited by Defendant Church’s are distinguishable in that they do not involve attempts to add amended claims which have the identical factual underpinning to claims properly raised in the pleadings and the pretrial order. See also, Daniels v. Board of Education of Ravenna City School District, 805 F.2d 203, 210 (6th Cir.1986) (disparate impact claim not allowed where case tried on disparate treatment theory). The Court finds that it would be manifestly unjust to jettison half of Plaintiff’s case for the failure of her attorney to properly plead the assault claim. Plaintiff was employed by Church’s Fried Chicken from December 31, 1984 until March 22,1985, at Store # 606, Church’s downtown location on Houston Street. Defendant Jerry Estrada was employed during this time period as “team leader.” The Court finds that Jerry Estrada worked 3-4 nights each week when no managers were present and that Belinda Valdez was often working during this shift. Although Plaintiff testified at trial that Defendant Estrada was an assistant manager and fired her from her job as a “team member” at Store # 606, the Court does not find this testimony to be credible. No other witness corroborated Plaintiffs testimony that Jerry Estrada was actually an assistant manager at any time or held himself out to be an assistant manager by wearing a manager’s badge. Under Texas law, a defendant is guilty of civil and criminal assault when he “intentionally or knowingly causes physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Moore’s Inc. v. Garcia, 604 S.W.2d 261, 264 (Tex.Civ.App.-Corpus Christi 1980), 'writ ref. n.r.e.; Vietnamese Fisherman’s Association v. Knights of Ku Klux Klan, 618 F.Supp. 993 (S.D.Tex.1981). In the Pretrial Order, Plaintiff alleges that “Jerry Estrada pulled her pants down in the restroom and exposed his genitals to her and attempted to have sexual intercourse with her without her consent and over her protest.” Agreed Pretrial Order at 5. If true, these allegations quite obviously constitute an assault under Texas law. One of the many difficulties the Court faces in reaching a decision in this case is sorting our diametrically conflicting testimony from interested witnesses. The court in Heelan v. Johns-Manville Corp., 451 F.Supp. 1382, 1385 (D.Colo.1978) was faced with similar difficulties in evaluating conflicting testimony. This Court has also considered as many relevant factors as possible in making its credibility determinations, including a witness’ motive, memory, and demeanor on the witness stand. This Court has carefully weighed the testimony of all witnesses in attempting to reconstruct the relevant events which occurred at Store # 606 in 1985. Credibility determinations in this case are made even more difficult by the fact that some witnesses are worthy of belief on some issues and completely incredible on others. This problem is particularly acute when assessing the testimony of Belinda Valdez. At trial it was evident to the Court that Belinda Valdez lied about several critical facts. Defendant’s counsel, Mr. George Brin, established to the Court’s satisfaction that Defendant’s Exhibit LL, which purports to be a statement from an impartial party who witnessed Jerry Estrada sexually harass Belinda Valdez at Store # 606, is actually a forgery done in Plaintiff’s own hand. Furthermore, two witnesses, Bertha Chapko and Rebecca Martinez, testified that Plaintiff approached them while they were staying at the Bexar County Women’s Shelter and asked them to sign false statements accusing Jerry Estrada of sexual harassment. Although Plaintiff continued to deny at trial that she solicited false statements against Defendant Estrada, the Court finds the testimony of Chapko and Martinez to be credible. The motiye for Plaintiff’s solicitations, according to Ms. Martinez, was that Plaintiff needed corroborating witness statements before her lawyer would agree to take her case. Defendant Estrada’s counsel suggests that the Court find Plaintiff’s testimony to be unworthy of belief in all respects because it was revealed as obviously untruthful in some respects. This solution to the credibility problem is tempting, but the Court finds that the truth in this case is colored in shadings of gray rather than in stark relief. Although some of the details concerning the alleged assaultive conduct may be unclear the Court finds that an assault was committed by Defendant Jerry Estrada against Belinda Valdez. Against this backdrop the Court will now consider the specifics of the alleged assaults. At trial, Belinda Valdez testified about three “serious” incidents involving Jerry Estrada. The first occurred approximately one month after Plaintiff began working for Church’s on the last day of December, 1984. Before this first incident of physical contact, Plaintiff testified that on the very first day of her job, Defendant Estrada approached her, told her she was pretty, that he wanted to “have her,” and asked her out on a date. Plaintiff refused Defendant’s invitation. Although Jerry Estrada does not specifically deny this account, he categorically denies that he was romantically interested in Belinda Valdez or that he physically approached her in any manner. Estrada further testified that another employee at Store # 606 told him that Plaintiff had a crush on him and that he didn’t want her “to fall for me.” Defendant also testified that Plaintiff’s account of the assaults is not plausible because he was happily married to his wife at the time. The Court finds Plaintiff’s testimony to be credible regarding what transpired on her first day of work. Although Plaintiff and Defendant may not have been on the same shift for a long period of time on December 31st, and Plaintiff made no notation of the incident in her personal journal, Plaintiff’s account of the incident is consistent with Jerry Estrada’s pattern of behavior. Vicki Vasquez, one of the few completely credible witnesses who testified at trial, stated that on her very first day of work Jerry Estrada asked her to walk across the street with him and give him a kiss. Although Ms. Vasquez was only 16 years old at the time, she rebuffed Defendant Estrada’s amorous advances and warned him that she would report him to the store manager, Abel Salazar, if Estrada tried anything again. Notwithstanding this rebuke, Estrada did in fact approach Ms. Vasquez on two later occasions. In the second incident, Ms. Vasquez asked Jerry Estrada to help her study for an employment related test. In response, Estrada asked Ms. Vasquez what she would do for him. Ms. Vasquez understood Defendant Estrada’s question to be a romantic or sexual insinuation. The third incident occurred when Ms. Vasquez was in the back of the store and reaching up to get a can from a shelf. Estrada approached her from behind, put both hands on her waist and hugged her. Ms. Vasquez also successfully repelled this clumsy advance. Other Church’s employees testified that Jerry Estrada was “constantly hugging the girls.” Jesse Oliveras testified that Estrada would often tell female employees under his supervision to perform some chore in the back of the store and then follow them and hug them, sometimes staying for five minutes. Although some of these advances may have constituted flirtation, rather than actionable sexual harassment, and may have been welcomed, they at least serve to thoroughly impeach the credibility of Jerry Estrada in the Court’s view. Defendant Estrada admitted that he hugged his female co-employees at Church’s “most of the time,” but claimed his hugs were only friendly in nature and that he treated his male co-employees in the same manner. This testimony is not credible. Other witnesses testified that Estrada singled out female employees for this “friendly” treatment, and notwithstanding Defendant’s protestations that he was happily married, the Court finds that Jerry Estrada improperly attempted to use his position as team leader to his advantage. The Court does not believe it necessary to detail the three incidents alleged by Plaintiff. Briefly summarized, on the first occasion, Plaintiff and Defendant were alone in a backroom when Defendant approached Plaintiff from behind and rubbed up against her and fondled her breasts. On the second occasion, Jerry Estrada asked Belinda Valdez to come into the back office to discuss her job evaluation. Estrada told Valdez that she could become a team leader if she was nice to him, pulled out his penis and attempted to force Plaintiff to engage in oral copulation. On the third occasion, Defendant Estrada came into the restroom while Plaintiff was cleaning. Estrada pushed Plaintiff against the wall, pulled down her pants, and attempted to have sexual intercourse with Plaintiff. Plaintiff resisted and because she crossed her legs, Defendant was only able to achieve partial penetration. The accounts given by Plaintiff of these three incidents in her deposition and her trial testimony are not completely consistent. Many of the details of the three incidents are scrambled in Plaintiffs mind, by her own admission, and she testified that she tries to forget what happened. For example, Plaintiff’s testimony regarding the time these three incidents occurred is not consistent. Dr. Francisco Rodriguez testified that it is common for victims of post-traumatic stress syndrome not to remember and recount details of the stressful event. Defense counsel attempts to make much of these inconsistencies of detail, with the obvious implication that all three incidents have been entirely fabricated by Belinda Valdez. Despite these inconsistencies, the Court finds that Belinda Valdez was sexually assaulted by Jerry Estrada at least once and that Estrada’s advances were unwelcome. Defendant Estrada does not claim that any of the physical contact was consensual — he categorically denies that any of it ever occurred. The Court's finding that Plaintiff was sexually assaulted is bolstered by the testimony of Dr. Francisco Rodriguez, a treating psychiatrist, and Ms. Lois Healy, Plaintiff’s clinical social worker. Dr. Rodriguez saw Plaintiff three or four times on an emergency basis. Dr. Rodriguez diagnosed Belinda Valdez’s condition as post-traumatic stress disorder — chronic. Dr. Rodriguez testified that this condition is a rigid diagnostic criteria and identified seven symptoms of the disorder — all of which were present in Belinda Valdez. In Dr. Rodriguez’s medical opinion, Plaintiff’s condition was caused by a series of incidents at Church’s Fried Chicken which culminated in an attempted rape by Jerry Estrada. Dr. Rodriguez further indicated that he had a 70-80% confidence level in the truthfulness of Plaintiff’s account. Dr. Rodriguez also testified that Plaintiff’s case history included feelings of being ashamed and reports of showering two to three times daily, a common behavioral trait of rape victims. Ms. Healy met Plaintiff through her church and has been providing counseling to Plaintiff once or twice each week for the last year and a half. Ms. Healy testified that her sessions with Plaintiff were marked by crying, apprehension, fear of men, and accounts of nightmares, and feelings of shame. Ms. Healy originally began consulting Plaintiff with her husband, in an effort to work out their difficulties after their divorce. Ms. Healy indicated that both Plaintiff and her ex-husband attempted to avoid talking about what happened at Church’s Fried Chicken and were ashamed of the incidents. Ms. Healy’s “social worker diagnosis” of Plaintiff’s condition was severe anxiety and depression. Although Ms. Healy prefaced her opinion with the caveat that she could never be certain if a client was being truthful, she stated that she believed Plaintiff’s account of the incidents at Church’s Fried Chicken. Defendants did not offer any clinical or psychiatric testimony to controvert the testimony of Plaintiff’s two expert witnesses. They did, however, attempt to impeach the testimony of both Dr. Rodriguez and Ms. Healy by adducing that neither clinician performed any psychological tests to establish Belinda Valdez’s truthfulness. They further attempted to impeach Dr. Rodriguez by showing that he did not delve into Plaintiff’s childhood or previous sexual experiences. Dr. Rodriguez countered this attempt to impeach his testimony by stating that the recommended treatment of patients suffering from post-traumatic stress syndrome avoids thorough exploration of the patients’ trauma because these patients are usually quite reluctant to reveal details of their experiences. Defendants offered no testimony that the post traumatic stress syndrome Dr. Rodriguez diagnosed could have been caused by ongoing marital difficulties and domestic assaults. Belinda Valdez’s performance on the witness stand revealed her to be an unsophisticated liar. Her attempts to forge witness statements and manufacture favorable testimony were transparently ineffective. Ironically, Plaintiff’s inconsistent testimony in these areas lends more credibility to her testimony on the ultimate issue— whether an assault in fact occurred. For the Court to accept Defendants’ position, it would have to conclude that no physical contact ever occurred between Jerry Estrada and Belinda Valdez and her account of the incidents was a complete fabrication. Furthermore, the Court would have to believe Plaintiff was sophisticated enough to effectively fabricate the seven symptoms outlined in Dr. Rodriguez’s post traumatic stress disorder diagnosis, and such details as nightmares and taking showers two to three times daily. Quite simply, the Court finds that Plaintiff is not sophisticated enough to fabricate these details and completely buffalo three clinical experts, including two medical doctors. For all the foregoing reasons, the Court finds that Defendant Jerry Estrada did sexually assault the Plaintiff on at least one occasion. The details may be confused in Plaintiff’s recollection, but the Court finds that Defendant Estrada did assault Belinda Valdez. Something must be said, however, about the many disturbing fabrications and inconsistencies in Plaintiffs testimony. Three witnesses, Rebecca Valadez, Bertha Chap-ko, and Rebecca Martinez, testified that Plaintiff approached them to solicit false statements about Jerry Estrada assaulting her. There was some indication in the testimony that Adam Valdez and Bernie Castillo may have been similarly solicited. Further testimony revealed that the Plaintiff, although she fervently denied it, was willing to trade custody of her children for her husband’s cooperation in prosecuting this lawsuit. In short, Plaintiff was willing to go to incredible lengths to manufacture favorable testimony. That Plaintiff did fabricate some testimony and was willing to do a lot more to aid her case does not mean that the assault never occurred, however. One of Defendants’ witnesses, Bertha Chapko, testified that when Plaintiff approached her with the request to give false testimony, Plaintiff explained that she needed witness statements corroborating her story before her lawyer, Mr. Patrick Stolmeier, would accept her case. The Court finds that Belinda Valdez did fabricate some testimony and attempt to solicit additional false testimony. The Court finds, however, that the reasons for this unconscionable conduct were not that the assault itself was also a fabrication, but that Plaintiff was overzealous in her attempts to get an attorney to take her case and in her attempts to prevail on the merits at trial. Under these circumstances, it is difficult for the Court to accept any of Plaintiff’s testimony, and even more difficult to rule in Plaintiffs favor, but after reviewing all of the conflicting testimony and evaluating the circumstances of this case, the Court concludes that Defendant Jerry Estrada is liable for assault under Texas law. 2. Liability of Church’s Fried Chicken a) Liability for actual damages The general rule in Texas is that liability of a corporation for the assault of its employees cannot attach unless the assault was in furtherance of the corporation’s business. Tierra Drilling Corp. v. Detmar, 666 S.W.2d 661, 663 (Tex.App-Corpus Christi 1984). In some situations an employee such as a bouncer may be authorized to use force, but in this case there was no testimony that Church’s Fried Chicken authorized Jerry Estrada to use any force in the performance of his duties. As a matter of common sense, cooking and serving fried chicken is not the type of employment which requires any use of force. Assaults on third parties are generally considered to be expressions of personal animosity and outside the scope of a servant’s authority. Green v. Jackson, 674 S.W.2d 395, 398 (Tex.App.-Amarillo 1984, writ, ref'd n.r.e). Even under the more liberal line of Texas cases, liability will not attach against the employer unless “the act complainted of arose directly out of and was done in the prosecution of the business that the servant was employed to do.” Id. In this case there can be no question that the sexual assault Jerry Estrada committed on Belinda Valdez was purely personal and had nothing to do with the business of Church’s Fried Chicken. Accordingly, the Court finds that Defendant Church’s is not liable for any actual damages Plaintiff may have suffered. See, e.g., Smith v. M. System Food Stores, 156 Tex. 484, 297 S.W.2d 112 (1957); Rosales v. American Bus Lines, Inc., 598 S.W.2d 706 (Tex.Civ.App-El Paso 1980, writ ref'd n.r.e.); Humbert v. Adams, 361 S.W.2d 458 (Tex.Civ.App.—Dallas 1962, no writ). b) Liability for punitive damages Since the Court has determined that Plaintiff is not entitled to recover any actual damages against Defendant Church’s, it follows without question that Plaintiff cannot recover punitive damages from Defendant. This obvious principle has been explicitly recognized by several courts interpreting Texas law. E.g., Mack v. Newton, 737 F.2d 1343 (5th Cir.1984); Texas National Bank v. Karnes, 717 S.W.2d 901 (Tex. 1986); City Products Corp. v. Berman, 610 S.W.2d 446 (Tex.1980). Accordingly, the Court need not independently consider whether Plaintiff is entitled to an award of punitive damages against Church’s Fried Chicken. 3. Damages a) Punitive damages The parties have submitted extensive post-trial briefing on the issue of whether this is an appropriate case for an award of exemplary damages. A plaintiff may recover punitive damages from an assault only where there is a finding of malice on the part of the defendant. E.g., Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, 712 (1943); Bolton v. Stewart, 191 S.W.2d 798 (Tex.Civ.App.-Ft. Worth 1945, no writ). Acts done with gross indifference to the legal rights of others such that they amount to wanton intentional acts without just cause are malicious under law. See, e.g., Farmers and Merchants State Bank v. Ferguson, 617 S.W.2d 918, 921 (Tex. 1981); Lusk v. Onstott, 178 S.W.2d 549, 554 (Tex.Civ.App.-Amarillo 1944, no writ). Where a tort is committed intentionally and has the outrageous character associated with a crime, an award of punitive damages is permitted. Prosser & Keeton, Law of Torts, § 2 (5th Ed.1984). Plaintiff argues that punitive damages are recoverable in this case because the conduct of Defendant Estrada would amount to aggravated sexual assault under the criminal law. Defendant Church’s has persuaded the Court that the evidence in this case would not establish either aggravated sexual assault or aggravated assault. See TEX. PENAL CODE §§ 22.02, 22.021 (Supp.1988) Although the definition of assault under the civil and the criminal law is identical, neither party submits any authority for the proposition that the element of malice which justifies an award of punitive damages under the civil law is synonymous with the element of aggravation under the criminal law. Accordingly, the Court finds it unnecessary for Plaintiff to prove Jerry Estrada caused serious bodily injury, threatened Plaintiff with a deadly weapon, or that Plaintiff was under 14 years of age to support an award of punitive damages. The Court finds that Jerry Estrada did act with malice in this case. By using his position of authority over Belinda Valdez to solicit sex he committed a wanton act which disregarded Plaintiffs legal rights. Defendant Estrada does all but concede this point in his post-trial briefing: “the conduct of Jerry Estrada does not fall within [the] definition of malice. At most, any such actions amount to no more than inappropraite conduct in a working environment. Of course, should the Court believe that [Plaintiff] was forceably raped and sodomized, such actions would then fall within both the Civil and Criminal definitions of malice.” Defendants Supplemental Brief at 5 (Clerk’s Docket Entry # 190). The Court, in its factual findings, has determined that Jerry Estrada’s action went far beyond “inappropriate conduct in a working environment.” Specifically the Court found that Jerry Estrada attempted to rape Belinda Valdez. Accordingly, an award of punitive damages is warranted under the facts of this case. b) Causation Before the Court can calculate the amount of actual damages suffered by Plaintiff and make a determination of punitive damages, it must first settle the thorny issue of causation. The difficulty in this case arises because most of the damages Plaintiff seeks to recover are for mental anguish and psychological injury. Both of Plaintiff’s expert witnesses testified that Belinda Valdez was more vulnerable to psychological injury because of serious prior difficulties in her marriage. Defendants maintain that these prior psychological difficulties and vulnerabilities cannot be separated from the traumatic events at Church’s Fried Chicken in terms of causation. Although Plaintiff did not specifically delineate these specific items of damages, in the Court's view, Plaintiff may possibly recover for seven separate items of damages: 1) Physical injuries from the assault itself; 2) Mental anguish from the assault; 3) Injuries arising from her diagnosed condition of post-traumatic stress syndrome; 4) The costs of prior and future counseling; 5) Loss of earning capacity in the past and in the future; 6) Aggravation of marital difficulties; 7) Aggravation of general anxiety and depression. Before the Court reviews the relevant proximate cause standards to apply in this case and considers each item of damages, a critical distinction must be drawn between the post-traumatic stress syndrome diagnosed by Dr. Rodriguez and the more general condition of anxiety and depression discussed by Ms. Healy. Dr. Rodriguez testified that post-traumatic stress syndrome is a narrow diagnostic criteria which requires the presence of several specific symptoms. Ms. Healy’s non-medical opinion was that Belinda Valdez was suffering from “depression and extreme anxiety.” The Court finds that the depression and anxiety found by Ms. Healy is a broader categorization than post-traumatic stress syndrome. Indeed, it is possible that Plaintiff currently suffers from both conditions, but it is clear to the Court that the conditions are not synonymous. To the extent Ms. Healy’s “social worker diagnosis” conflicts with Dr. Rodriguez’s medical opinion, the Court accepts the testimony of Dr. Rodriguez. Many of Defendants’ arguments blur this critical distinction. At one point, Church’s argues that “the evidence clearly establishes that Belinda Valdez suffered from depression and anxiety to the same degree prior to her employment with Church’s as she did after leaving Church’s.” Trial Brief on Eggshell Skull Doctrine at 4 (Clerk’s Docket Entry # 186). In another subsequent brief, Church’s argues that “Valdez assumes that her depression and mental suffering did not exist prior to her employment at Church’s_Valdez equates a pre-existing condition with manifestations of the same type of injury which she now claims with a latent condition. The difference is that Belinda Valdez suffered from traumatic stress long before she began working at Church’s.” Defendant’s Reply to Belinda Valdez’s Response to Court Order of December 15, 1987 at 8-9 (Clerk’s Docket Entry #196). (Emphasis supplied). Although the Court will later analyze Dr. Rodriguez’s diagnosis in more detail, these excerpts should make evident that at least Defendant Church’s is attempting to collapse the diagnoses of the two expert witnesses into one more general psychological condition. It is hornbook law that a Plaintiff cannot recover damages unless she can show proximate cause between the wrongful conduct of the defendant and the injuries complained of. Forseeability of the victim’s injuries is the prime ingredient of proximate cause and the damage award should attempt to place the plaintiff in the same position as before the tortious conduct of the defendant. See, e.g., Boles v. La Quinta Motor Inns, 680 F.2d 1077 (5th Cir.1982); Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984); Genell Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). With this background the Court can now turn to the specific items of damages which may be recoverable in this case. Plaintiff did not testify that she received any physical injuries from the assaultive conduct of Jerry Estrada. Plaintiff’s description of the incidents and their effect on her focused on psychological rather than physical injuries. The Court therefore finds that Plaintiff is entitled to no award for physical injuries. Plaintiff did provide testimony about the mental anguish she suffered as a result of the assaultive conduct of Jerry Estrada. Since these incidents Plaintiff claims she is afraid of men, has difficulty sleeping, cries a lot, and is clumsy. Plaintiff’s expert witnesses testified that Plaintiff reported suffering from nightmares and felt the need to shower two to three times daily. The testimony in this case and Plaintiff’s performance on the witness stand indicate that Belinda Valdez is a deeply disturbed individual who experienced a violent marriage and suffers from feelings of low self esteem. As the Court will more fully elaborate when it discusses Plaintiff’s marital difficulties and her general depression, not all of her psychological problems can be linked to her experiences at Church’s Fried Chicken. Nevertheless, the Court finds that the sexual assault did proximately cause Plaintiff mental anguish. Specifically, Plaintiff’s expert witnesses directly linked her nightmares and showering behavior and her difficulty sleeping (to be considered separately as a symptom of post traumatic stress syndrome) to the series of incidents at Church’s Fried Chicken. There was no evidence that Plaintiff had problems sleeping or exhibited the symptoms commonly experienced by rape victims before the incidents at Church’s. There was evidence that Plaintiff often came to work in tears, and the Court declines to find that Plaintiff’s crying was causally linked to Defendant’s conduct. Plaintiff’s asserted fear of men after these incidents at Church’s will be addressed in the Court’s discussion of possible recovery for lost earning capacity. As early as 1895 Texas courts recognized that a female plaintiff could recover mental anguish damages from a sexual assault, even when there was no physical contact by the defendant. Leach v. Leach, 11 Tex. Civ.App. 699, 33 S.W. 703 (1895, no writ) (“It is too plain for argument, we think, that a willful violator of woman’s most sacred right of personal security ... [t]hough [the victim’s] body be not touched, except by his foul breath and speech, should respond in damages for an outrage to her feelings which proceeds so directly from his concurrent criminal purpose and act.”) Subsequent cases have expanded the exception to the general requirement that some physical manifestation must accompany the mental anguish for plaintiff to recover. E.g., Reicheneder v. Skaggs Drug Center, 421 F.2d 307, 313 (5th Cir.1970) (humiliation suffered as result of false arrest); Moore v. Lillebo, 722 S.W.2d 683, 685 (Tex.1987) (“Nature of [some] torts assures that claimants will suffer mental injury” — emotional reaction by parent considered natural by-product of wrongful death of child); Brown and Root Inc. v. City of Cities Municipal Utility District, 721 S.W.2d 881, 885 (Tex.App-Houston 1986, no writ) (no proof of physical injuries required to prove mental anguish from damage to home caused by improper design and installation of drainage culvert). In this case, even absent any physical manifestation of mental anguish, the Court finds that the exception noted in these cases applies because sexual assault, by its nature, assures that the plaintiff will suffer some mental injury. The Court finds that Plaintiff should recover $10,000.00 in damages for mental anguish. Dr. Francisco Rodriguez diagnosed Plaintiff’s condition as post-traumatic stress syndrome. In Dr. Rodriguez’s medical opinion this condition was caused by the series of incidents at Church’s Fried Chicken which culminated in Jerry Estrada’s attempted rape. According to Dr. Rodriguez, the symptoms of a patient suffering from post-traumatic stress syndrome include distressing recollection of an event which would be stressful to an average person, distressing dreams about the event, sudden acts, intense psychological distress, avoidance of stimuli and the numbing of general responsiveness, decreased interest in normal activities, and difficulty in falling asleep. Dr. Rodriguez testified that all of these items applied to Belinda Valdez. Dr. Rodriguez prescribed anti-depressant drugs and psychotherapy to treat Plaintiff's condition. In the doctor’s opinion, Belinda Valdez’s prognosis is very poor and she will require psychiatric care for the rest of her life. Dr. Rodriguez further indicated that Plaintiff may require sexual therapy and behavioral therapy. At this point it is difficult for the Court to maintain its artificial distinction between the separate areas of damages outlined at the beginning of this section of the opinion. The damages Plaintiff suffered as a result of her post-traumatic stress syndrome cannot be separated from the costs of psychiatric care and counseling. Accordingly, the Court will determine what portion of past and future expenses for psychiatric care and counseling can be attributed to Plaintiff's post-traumatic stress syndrome. Dr. Rodriguez saw Plaintiff on four occasions at a cost of $250.00. Up until trial, Plaintiff incurred $2,700.00 in expenses for the costs of her regular sessions with Ms. Lois Healy. The Court finds that 100% of Dr. Rodriguez’s services were necessary for treating the post-traumatic stress syndrome condition suffered by Plaintiff. It is more difficult to attribute 100% of Ms. Healy's services to the condition diagnosed by Dr. Rodriguez. Ms. Healy candidly admitted in her testimony that she was uncomfortable with the word “cause” and testified that Plaintiff’s difficulties were “related to” the incidents at Church’s Fried Chicken. In another portion of her testimony, Ms. Healy testified that the incidents at Church’s were not the only “cause” of Plaintiff’s current condition. As the Court has earlier explained, however, it accepts the more specific diagnosis of Dr. Rodriguez rather than the more general diagnosis of anxiety and depression given by Ms. Healy. Even though Ms. Healy did not specifically diagnose Plaintiff’s condition, she did provide treatment for Plaintiff. The Court therefore finds that 75% of the costs of Ms. Healy’s treatment should be recoverable as damages for Plaintiff’s post-traumatic stress syndrome. Although Dr. Rodriguez testified that Plaintiff will require psychiatric care for the rest of her life, the Court is not prepared to make such an unlimited damage award. In discussing the question of how long it would be before Belinda Valdez would be able to return to work, Dr. Rodriguez stated that she was disabled indefinitely, but that it was difficult to make an estimate of disability beyond one year. While this testimony concerned Plaintiffs disability from work, the Court finds that any award of medical expenses for the future beyond one year would be too speculative. See, e.g., Roberts v. U.S. Home Corp., 694 S.W.2d 129, 135 (Tex.App.—San Antonio, no writ, 1985). The Court therefore finds that Defendant Estrada is liable for $5,200.00 to cover Plaintiffs future medical expenses. Although not specifically raised by Defendants, the Court will briefly discuss whether Defendant Estrada could reasonably foresee that his actions would cause post-traumatic stress syndrome in Belinda Valdez. See generally, Kaufman v. Miller, 414 S.W.2d 164 (Tex.1967). It could be argued that a reasonable person could not foresee that an attempted rape would cause post-traumatic stress syndrome. It is well settled law, however, that the defendant need not foresee the particular injury suffered as long as it is the type of injury which would be normally foreseeable. See generally, Prosser and Keeton, The Law of Torts, (5th ed. 1984) at 291-292. The Court finds that it was reasonably foreseeable that a victim of an attempted rape would suffer mental anguish, even if the particular form of mental anguish — post-traumatic stress syndrome— is riot understood. Accordingly, holding Defendant Estrada liable for Plaintiffs post-traumatic stress syndrome damages does not violate legal principles of foreseeability. Professor Prosser has written that "... in the absence of knowledge of the Plaintiffs unusual susceptibility, there should be no recovery for hypersensitive mental disturbance where a normal individual would not be affected under the circumstances.” Law of Torts. 352 (3d ed. 1964), cited in Kaufman, supra, at 170. This rule against mental disturbance damages does not apply in this case because one of the criteria for Dr. Rodriguez’s diagnosis was that a normal individual would have been affected by the attempted rape. Furthermore, there was evidence in the record that Defendant Estrada did have knowledge of Plaintiffs vulnerability because it was well-known by Church’s employees that Belinda Valdez was experiencing marital difficulties. Both Plaintiff and Defendants devote some argument in their post-trial briefing to the issue of what degree the evidence establishes the sexual assault aggravated a pre-existing condition. See, e.g., Sterrett v. East Texas Motor Freight Lines, 150 Tex. 12, 236 S.W.2d 776, 778 (1951) (“recovery for an aggravation of a prior diseased condition is allowable when such aggravation results directly and proximately from actionable [conduct], the recovery of course being limited to the increase of ill effects directly and proximately resulting from the injury.”). The Court finds this analysis inapplicable to Plaintiffs post-traumatic stress syndrome. As the Court has earlier explained, Belinda Valdez did not suffer from post-traumatic stress syndrome prior to her employment at Church’s Fried Chicken. Plaintiffs psychological problems and marital difficulties may have made her more vulnerable, but there was no evidence in the record that post-traumatic stress syndrome existed pri- or to her employment at Church’s or was a latent condition. The Court therefore need not grapple with the issue of what degree the assault at Church’s aggravated Plaintiff’s previous problems. This analysis will be necessary when the Court considers Plaintiffs more general problems of depression and anxiety, but it is not necessary here. The Court has determined that Plaintiff is entitled to a damage award for past and future medical expenses as a result of her post-traumatic stress syndrome. The Court does not think it necessary to make a further award of damages to cover the actual manifestations of Plaintiffs condition, viz., avoidance of stimuli, decreased interest in activities, difficulty sleeping, etc. Although these manifestations of psychological distress may be more pronounced than the mental anguish already discussed, since the Court has already-made an award of $10,000.00 to cover Plaintiff’s mental anguish damages, it is not appropriate to make a separate award here. The next issue to consider is Plaintiff’s claimed inability to work after her experiences at Church’s Fried Chicken. After being terminated from Church’s St. Mary’s Street store in April of 1985, Plaintiff held five other jobs. Plaintiff testified that she can’t work around men since her experiences at Church’s Fried Chicken and that she quit jobs at Luby’s, Checkers Restaurant, and Alfonso’s because she was afraid of men and feared that the same experience which occurred at Church’s would happen. Both Dr. Rodriguez and Ms. Healy testified that Plaintiff is afraid of men and has difficulty working around men as a result of her experiences at Church’s. In Dr. Rodriguez’s opinion, Plaintiff is completely incapacitated from working indefinitely. He was unwilling to predict a permanent work disability beyond one year, however. Defendants argue that these employment difficulties are a result of psychological problems Plaintiff had before working at Church’s. Plaintiff has a simple answer to this argument. The evidence in this case established that despite Plaintiff’s marital difficulties she had a good work record. Even Defendant Estrada testified that Belinda Valdez always got good evaluations and that he had input into these evaluations. Estrada did complain about Plaintiff’s moodiness at work and claimed she was difficult to get along with, but in light of her good performance evaluations, the Court finds that Plaintiff was a good employee while she worked at Store #606. This finding severely undermines Defendant’s theory. Since Plaintiff was able to perform on the job before the incidents at Church’s and was unable to work after the incidents at Church’s, the Court finds that Plaintiff’s job disability was caused by Defendant’s conduct. The Court must now fix an amount of damages for Plaintiff’s job disability. The Court finds that Plaintiff was disabled from working in the past and was unable to maintain permanent employment as a result, but that any wages she was able to earn must be deducted from the damage award. The Court further finds the Plaintiff should recover damages for the next one year because of her disability from employment. The period the Court must analyze for the purposes of making a damage award for past employment disability covers April 1985-December 1987. From Plaintiff's testimony, the Court estimates that Plaintiff earned approximately $14,-500.00 from April 1985 until December 1987, despite her disability. With the exception of the housecleaning jobs Plaintiff performed on her own, Plaintiff’s jobs paid approximately $3.50/hr. The Court estimates that had Plaintiff been able to hold down full-time employment at Church’s during this period, she would have earned approximately $12,000.00. Since Plaintiff’s actual earnings exceeded what she would have earned absent the disability, the Court finds that Plaintiff is not entitled to any award of damages for past employment disability. Although it may seem somewhat anomalous to find that Plaintiff is completely disabled from work despite the fact that she was able to work for certain periods of time, the Court accepts the testimony of Dr. Rodriguez and Ms. Healy. Their testimony and Plaintiff’s own testimony about her job record since leaving Church’s support the finding that Plaintiff experiences great difficulty working around men. Plaintiff may be able to intermittently work on her own as a housekeeper if there are no men she has to work with or serve, but the Court does not think this fact necessarily negates Dr. Rodriguez’s finding of total disability. The Court determines that if Plaintiff were able to maintain full-time employment in the next year, she would earn approximately $7,000.00. However, to award this full amount would give Plaintiff an unjustified windfall because her actual earnings from April 1985-December 1987 exceeded what she would have earned at Church’s by approximately $2,500.00. See E.E.O.C. v. Fotios, 671 F.Supp. 454, 459-60 (W.D.Tx.1987) (“The failure to account for this wage differential [between the replacement job and the former job] means that ... Montes would actually be placed in a better position than she would have occupied absent the discrimination.”) Although the Fotios back pay award was made under Title VII, and this award is for future employment disability pursuant to state law, the same principle of compensation applies. The purpose of compensatory damages in tort is to place plaintiff, as near as possible, in the same position she would have enjoyed absent the wrongful conduct. Accordingly, the Court finds that Belinda Valdez is entitled to an award of $4,500.00 to cover future employment disability. The Court will treat the last two items of possible damages together. The Court finds that no award is appropriate for any aggravation of Plaintiff’s marital difficulties. The Court finds it is simply too speculative to attribute any aggravation of Plaintiffs marital problems to her experience at Church’s Fried Chicken. Even before her employment at Church’s, Plaintiff suffered severe beatings at the hands of her husband and admitted that her husband caused a miscarriage by kicking her in the stomach. Although Plaintiff claimed that the beatings became more severe as a result of the incidents at Church’s and Plaintiff attempted to minimize and rationalize the abuse she received, the Court is unwilling to hold Defendant responsible for worsening what was already a terrible domestic situation. The Court is similarly disinclined to make any damage award for aggravation of Plaintiff’s general anxiety and depression. The Court finds that Plaintiff suffered severe psychological problems before her employment at Church’s and it is not possible to attribute any aggravation of these problems to Defendant’s conduct. To summarize, the Court finds that Plaintiff is entitled to recover the following items of damages: 1.Mental anguish from the assault.$10,000.00 2. Past medical expenses.$ 1,825.00 3. Future medical expenses.. $ 5,200.00 4. Future employment disability .$ 4,500.00 5. Punitive damages.$25,000.00 TOTAL: $46,525.00 In addition, Plaintiff is entitled to prejudgment and postjudgment interest on this damage award. See, e.g., Crown Central Petroleum Corp. v. National Union Fire Insurance Co., 768 F.2d 632 (5th Cir.1985); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985). The calculation of these amounts will be set forth in the Court’s judgment. C. Title VII Claim for Sexual Harassment Sexual harassment claims under Title VII may take one of two forms. As outlined by the Eleventh Circuit Court of Appeals in Henson v. City of Dundee, 682 F.2d 897 (1982), Title VII recognizes a sexual harassment case based on a “hostile work environment” or a “quid pro quo” claim where an employer requires sexual consideration from an employee as a bargain for job benefits. Accord, Jones v. Flagship International, 793 F.2d 714 (5th Cir.1986). If no tangible job benefit is involved, plaintiff is limited to a hostile work environment claim. Flagship supra, at 722 (“The acceptance or rejection of the harassment by an employee must be an express or implied condition to the receipt of a job benefit or the cause of a tangible job detriment in order to create liability under this theory of sexual harassment.”). The Court will analyze Plaintiff’s factual allegations under both of these paradigms. 1. Quid Pro Quo Plaintiff claims that she was actually terminated by Jerry Estrada from the downtown Church’s location sometime in March of 1985 and that she was later terminated from the St. Mary’s Street store for discriminatory reasons. As the Court has previously found, it rejects Plaintiff’s testimony that Jerry Estrada was an Assistant Manager and that he fired her from Store # 606. Instead, the Court finds that Belinda Valdez voluntarily transferred to the St. Mary’s Street store because it was closer to her home. In response to Plaintiffs allegation of a discriminatory termination from the St. Mary’s Street store, Church’s argues that Plaintiff was terminated for absenteeism rather than sexual discrimination. Under the well established proof doctrine set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and its progeny, this defense constitutes a legitimate nondiscriminatory reason for termination. The Court finds that Plaintiff failed to rebut the proffered reason for termination. Mr. Jerry Bailey, Defendant’s Personnel Director, testified that Church’s employment records reflect that Belinda Valdez was scheduled to work on both Friday and Saturday at the St. Mary’s Street store during the second week of April, 1985. Mr. Bailey further testified that Fridays and Saturdays are the busiest times during the week at Church’s and that unexcused absence from work during either of those periods would constitute grounds for termination. The Court therefore finds that Plaintiff’s termination from Church’s Fried Chicken was for legitimate rather than discriminatory reasons. Plaintiff further asserted that Defendant Estrada forced her to frequently clean the bathrooms and do the most difficult tasks in the store. Even if taken as true, these allegations would not support a quid pro quo claim because no “tangible job benefit” is involved. 2. Hostile Work Environment Before the commencement of trial Church’s moved to dismiss Plaintiff’s hostile work environment claim on the grounds that it had never been raised in the Fourth Amended Complaint or in the Pretrial Order. Although the magic words “hostile work environment” do not appear in Plaintiffs’ pleadings, the Court is persuaded by Plaintiffs’ counsel’s argument that the specific factual allegations set forth in the complaint and the Pretrial Order put Defendants on notice of the nature of Plaintiffs’ claims. As the Court has previously discussed, prejudice must be shown for the claim to be struck. Accordingly the Court will reach the merits of the hostile work environment claim. The United States Supreme Court recognized a claim for a hostile work environment, even in the absence of an “economic effect on the complainant’s employment,” in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 2406, 91 L.Ed. 2d 49 (1986). Not all claims of sexual harassment are cognizable under Title VII, however. In order for sexual harassment to be actionable under Title VII, “it must be sufficiently severe or pervasive ‘to alter the conditions of (the victims) employment and create an abusive working environment.’ ” Id. at 2406, citing with approval Henson v. Dundee, 682 F.2d 897, 904 (11th Cir.1982); and Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir.1971). The issue of when an employer becomes liable for a supervisor’s or a co-worker’s sexual harassment was explicitly left open by the Meritor decision. In Jones v. Flagship International, 793 F.2d 714, 719-720 (1986), the Fifth Circuit delineated the elements a plaintiff must establish to recover under a hostile work environment claim: (1) The employee belongs to a protected group, i.e., a simple stipulation that the employee is a man or a woman; (2) The employee was subject to unwelcome sexual harassment, i.e., sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome in the sense that it is unsolicited or unincited and is undesirable or offensive to the employee; (3) The harassment complained of was based upon sex, i.e., that but for the fact of her sex, the plaintiff would not have been the object of harassment; (4) The harassment complained of affected a ‘term, condition or privilege of employment,’ i.e., the sexual harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; (5) Respondent superior, i.e., that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. See also, Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 n. 3 (5th Cir.1987). There can be little argument that Plaintiff can successfully establish the first three elements of a hostile work environment claim. The Court has previously determined that Belinda Valdez was subject to unwelcomed sexual harassment which was based upon her sex. Although Defendant Estrada maintained that he treated all of his employees in the same manner, the Court disbelieves this testimony. Defendant Church’s argues that any sexual harassment which may have occurred was not sufficiently severe or-pervasive to alter the conditions of employment and create an abusive working environment. Although the Court has determined that Plaintiff did not suffer any tangible job detriment, such a finding does not preclude a hostile work environment claim. As the Flagship Court noted: “... ‘under certain circumstances the creation of an offensive or hostile work environment due to sexual harassment can violate Title VII irrespective of whether the complainant suffers tangible job detriment .. while an employee need not prove tangible job detriment to establish a sexual harassment claim, the absence of such detriment requires a commensurately higher showing that sexually harassing conduct was pervasive and destructive of the working environment.” Flagship, supra, at 720 (citations omitted). The Flagship Court noted further that a plaintiff’s psychological well-being is a term, condition, or privilege of employment within the meaning of Title VII. Id. In this case, the Court has determined that Defendant Jerry Estrada sexually assaulted Plaintiff on at least one occasion and this harassment included an attempted rape. The Court therefore finds that Plaintiff’s psychological well-being was significantly affected and that she has satisfied this element of her hostile work environment claim. Plaintiff’s claim founders on her inability to establish that Church’s knew or should have known of the harassment in question. Plaintiff may establish knowledge by proving that complaints were lodged with higher management or that the harassment was so pervasive that the employer must have been aware of it. See, e.g., Katz v. Doyle, 709 F.2d 251, 255 (4th Cir.1983); Taylor v. Jones, 653 F.2d 1193, 1199 (8th Cir.1981); Bundy v. Jackson, 641 F.2d 934, 936 (D.C.Cir.1981). In order to determine whether Church’s had notice of the sexual harassment committed by Jerry Estrada, the Court must resolve diametrically conflicting testimony. Plaintiff claims that she lodged complaints about Jerry Estrada’s sexual harassment with her assistant manager, Sam Hernandez, her manager, Abel Salazar, and the area supervisor, Marcial Leal. Plaintiff’s testimony is somewhat inconsistent on exactly what details she revealed to her supervisors. Throughout most of her testimony, Plaintiff maintained that whenever she broached the matter with Marcial Leal or Abel Salazar, both of them “cut her short,” and were not interested in listening to any details of sexual harassment. Toward the end of her testimony upon cross-examination, however, Plaintiff admitted that on at least one occasion Mr. Salazar wanted to know details and told her to go on. All three of these supervisory employees deny that any such conversations took place. Were this a simple swearing match between Belinda Valdez and Abel Salazar and Marcial Leal, the Court would have great difficulty in determining who was telling the truth. The inconsistencies in Plaintiff’s testimony have already been recounted. In addition, however, there are aspects of Defendant Salazar’s and Defendant Leal’s testimony which are not believable. The Court finds, however, that the testimony of Sam Hernandez is by far the most credible of all of these witnesses. Hernandez testified that Plaintiff approached him once and complained that Defendant Estrada was overworking her, but that she made absolutely no mention of any sexual harassment. When Hernandez confronted Estrada with this complaint, he explained that Belinda Valdez was making passes at him but he turned her down because she was “too ugly.” Hernandez was called by Plaintiff, and his testimony on the whole was quite balanced. Aspects of his testimony were favorable to both parties, and if anything, he might have an ax to grind against Church’s Fried Chicken because he was fired by Marcial Leal. Despite this possible bias, Hernandez would not support Plaintiff's allegation that he or anyone else at Church’s had notice of the sexual harassment committed by Jerry Estrada. The Court accepts the testimony of Sam Hernandez and finds that Plaintiff did not lodge any complaints about sexual harassment with Church’s management employees. If there is no direct showing of knowledge, knowledge may be inferred if the sexual harassment complained of was sufficiently pervasive. There is ample evidence in this case that Defendant Jerry Estrada was constantly flirting and touching the female employees at Store #606. Plaintiff herself admitted, however, that Defendant Estrada did not engage in this type of conduct when Abel Salazar was present. Furthermore, even if an assistant manager saw some of this conduct, it is highly questionable whether this conduct constitutes actionable sexual harassment. Flirting, some casual touching, and sexual innuendos or jokes do not by themselves constitute actionable sexual harassment. See, e.g., Dornhecker, supra, at 309 n. 4. This legal observation by no means condones Defendant Estrada’s conduct — it demonstrates that only the most serious sexual harassment can be the basis of a federal lawsuit under Title VII. Although the Court accepts the testimony of Rebecca Valadez that Abel Salazar once warned Defendant Estrada not to touch the girls because “it didn’t look polite in public,” this by itself does not constitute notice of sexual harassment. In short, the Court finds the evidence is insufficient to impute liability on Church’s Fried Chicken for the sexual harassment of Jerry Estrada. Plaintiff argues that the Supreme Court’s decision in Meritor established that “the absence of notice to an employer does not necessarily insulate that employer from liability.” Meritor, supra at 2408. By the same token, however, the Meritor court observed that “the Court of Appeals erred in concluding that t