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Click here for the full text of this decision FACTS: Rosa Padilla appeals a take-nothing judgment in favor of her former employer, Flying J, Inc. Flying J is a travel plaza that offers food, showers, and vehicle maintenance to truck drivers. Padilla began working at Flying J in 1997 in the maintenance department. Her duties included cleaning toilets and showers. Kenneth Beaumont was the manager of the maintenance department. Craig Copeland was the general manager of the plaza. Padilla complained to Copeland that Beaumont had sexually harassed her. She said the incident occurred at a gas station off of Flying J’s premises. Copeland obtained her written statement. Copeland met with Beaumont who denied the allegations. Copeland informed Beaumont that if the allegations were confirmed, he would be terminated. A few weeks later, Steve Parker, manager of Flying J’s restaurant, told Copeland that Padilla approached him about being transferred to the restaurant. Copeland said that he would approve the transfer if Beaumont agreed to it. Beaumont had no objection. Copeland confirmed with Padilla that she did indeed want to be transferred. Padilla began work at the restaurant as a dishwasher. Although Padilla testified that she felt it was a demotion, it was a lateral transfer with no change in pay. Padilla received positive evaluations and was promoted to buffet cook. Padilla sued Beaumont and Flying J claiming sexual harassment. Beaumont was never served with process. Following a bench trial, the trial court rendered a take-nothing judgment in favor of Flying J. The trial court entered findings of fact and conclusions of law. This appeal timely followed. HOLDING: Affirmed. Whether Beaumont was Flying J’s vice principal is irrelevant because the vice principal theory comes into play only after there is an intentional tort finding. Here, the trial court never made a finding that Beaumont assaulted her. An employer may be vicariously liable for the harassment of a supervisor if the supervisor takes a tangible employment action against the subordinate. Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998). Ellerth states that a tangible employment action consists of a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” In most cases, a tangible employment action inflicts direct economic harm. If no tangible employment action is taken, an employer may raise an affirmative defense to liability. The elements of the affirmative defense are: 1. the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2. the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Following a bench trial, the trial court issued its findings of fact and conclusions of law. The trial court found that while in the maintenance department, Padilla’s job performance and her job conditions were not adversely affected by anything Beaumont allegedly did to her. The trial court found that all parties were aware of Flying J’s written policy against sexual harassment and that Copeland promptly and reasonably investigated Padilla’s complaint. The trial court also found that Padilla requested the transfer from the maintenance department to the restaurant for reasons unrelated to the alleged sexual harassment and that the transfer was not a demotion or a more onerous position than she had as a maintenance worker. In its conclusions of law, the trial court concluded that even if Beaumont had committed the alleged harassing acts, such conduct did not constitute sexual harassment because Padilla “plainly testified that her job performance was not affected by anything Beaumont had done to her.” The court further concluded that even if Beaumont had sexually harassed Padilla, Flying J would not be liable because it exercised reasonable care to prevent and promptly correct the alleged sexual harassment and Padilla unreasonably failed to take advantage of the remedial measures. Padilla challenges the trial court’s conclusion of law applying the affirmative defense to her sexual harassment claim. She contends the affirmative defense is inapplicable because she suffered a tangible employment action when she was transferred from the maintenance department to the restaurant. Initially, the court notes that Copeland, not Beaumont, authorized the transfer. Beaumont agreed to the transfer, but he did not have the authority to authorize it. Thus, Beaumont, the alleged harassing supervisor, did not authorize the transfer which is, the alleged tangible employment action. Parker testified that Padilla asked for the transfer because she said she did not like working the “graveyard shift.” Copeland testified that Parker notified him that Padilla came to him requesting a transfer to the restaurant. In compliance with company policy, Copeland received the approval of both Beaumont and Parker for the transfer. Copeland authorized the transfer only after first confirming with Padilla that she wanted the transfer. Nevertheless, Padilla asserts that she was transferred because of her refusal to submit to Beaumont’s unwanted sexual advances. The transfer from maintenance worker to dishwasher at the restaurant was not a demotion. There was no change in Padilla’s pay. Soon after the transfer, Padilla was promoted to buffet cook and received a raise. As a result of the transfer, Padilla did not suffer any economic harm, nor did the transfer result in significantly different responsibilities. The evidence is both legally and factually sufficient to support the trial court’s findings of fact that Padilla did not suffer a tangible employment action. Accordingly, the trial court did not abuse its discretion in concluding that Flying J could raise an affirmative defense to Padilla’s sexual harassment claim. OPINION: Wright, J.

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