## Facts

- Amelia Flores worked as a security guard for Borg-Warner Protective Services Corporation and was assigned to a small field office in McAllen, Texas.
- The McAllen office operated with limited day-to-day oversight from the regional office; it was run locally by operations manager Santiago “Jimmy” Gonzales and security consultant Ruford “Rob” Richards.
- Gonzales repeatedly sexually harassed Flores and other female guards, including requests for dates and sexual favors tied to job benefits, unwanted touching, and other invasive conduct.
- Flores knew of at least one earlier incident in which another female guard reported harassment to Borg-Warner managers and the company took no effective action.
- The harassment against Flores culminated in a rape by Gonzales during business hours; Flores later learned she had contracted gonorrhea.
- Gonzales told Flores not to report the rape to other Borg-Warner supervisors.
- A few weeks later, Borg-Warner learned of the rape through indirect channels, placed Gonzales on administrative leave, and offered Flores a few days off.
- Flores resigned instead of returning to work.
- Flores sued Borg-Warner (and Gonzales) on intentional tort theories and for violating Texas Labor Code chapter 21 (the Texas Commission on Human Rights Act), which is modeled on Title VII.
- A jury found Flores was constructively discharged and awarded actual damages and exemplary damages; the trial court also awarded prejudgment interest and attorney’s fees using a multiplier and included contingent appellate fees.
- Borg-Warner appealed to the Texas Court of Appeals.

## Issues

1. Whether legally and factually sufficient evidence supported the jury’s finding that Flores was constructively discharged, supporting awards that included back pay and front pay.
2. Whether the trial court improperly awarded prejudgment interest on amounts treated as future damages (including front pay).
3. Whether Texas Labor Code chapter 21 displaced or barred Flores’s parallel common-law intentional tort claims based on the same conduct.
4. Whether closing argument amounted to an improper “ethnic plea” requiring reversal.
5. Whether the exemplary damages award against Borg-Warner was unconstitutional or otherwise improper (including due process, Excessive Fines Clause, and Commerce Clause arguments).
6. Whether the attorney’s fee award was erroneous, including (a) the court’s role in setting fees, (b) use of a fee multiplier, and (c) contingent appellate fees.

## Decision

- The court affirmed the judgment for Flores.
- The evidence supported constructive discharge because a reasonable employee could find the conditions intolerable given the repeated harassment, the rape, and the company’s history of failing to respond meaningfully to complaints.
- The court upheld the lost-pay awards, including front pay, as supported by the record.
- The court upheld the prejudgment-interest ruling as consistent with Texas law distinguishing past damages (which may bear prejudgment interest) from future damages (which generally may not).
- The court rejected the claim that chapter 21 provided an exclusive remedy and held Flores could pursue common-law intentional tort claims alongside her statutory sexual-harassment claim.
- The court found no reversible error based on the complained-of jury argument.
- The court upheld the exemplary damages award against constitutional and excessiveness challenges.
- The court upheld the attorney’s fee award, including the multiplier and contingent appellate fees, and approved the trial court’s determination of the fee amount.

## Legal Principles

- Constructive discharge exists when working conditions, judged objectively, are so intolerable that a reasonable employee would feel forced to resign; severe sexual harassment culminating in sexual assault, coupled with ineffective employer response, can satisfy this standard.
- Under Texas law, prejudgment interest is generally available for past damages but not for future damages; courts examine the substance of the award rather than labels.
- Texas Labor Code chapter 21 (TCHRA) does not, without clear legislative language, eliminate common-law intentional tort remedies arising from the same events as a statutory discrimination claim.
- Improper jury argument warrants reversal only when it is shown to probably cause an improper judgment; context, objections, and curing instructions matter.
- Exemplary damages are reviewed for legal limits, including due process considerations such as reprehensibility and proportionality, and may be upheld in cases involving extreme misconduct and employer fault.
- Attorney’s fees authorized by statute may be set by the trial court and may include a multiplier and conditional appellate fees when supported by evidence and permitted by Texas practice.

## Conclusion

The Texas Court of Appeals affirmed a judgment for a security guard who resigned after her supervisor’s repeated sexual harassment culminated in rape, holding that the record supported constructive discharge and related damages, that TCHRA did not bar parallel intentional tort claims, and that the prejudgment interest, exemplary damages, and attorney’s fee awards (including a multiplier and contingent appellate fees) were not reversible error.


Borg-Warner Protective Services v. Flores, 955 S.W.2d 861 (1997)