Hockman v. Westward Comm LLC , 407 F.3d 317 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 22, 2004
)))))))))))))))))))))))))) Charles R. Fulbruge III
Clerk
No. 03-41620
))))))))))))))))))))))))))
LADONNA HOCKMAN,
Plaintiff-Appellant,
vs.
WESTWARD COMMUNICATIONS, LLC; WESTWARD COMMUNICATIONS, LP,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
Before WIENER and PRADO, Circuit Judges, and LITTLE, District
Judge.*
EDWARD C. PRADO, Circuit Judge:
Ladonna Hockman sued Westward Communications, LLC and
Westward Communications, LP (collectively “Westward”) asserting
various claims under 42 U.S.C. § 2000 et seq. (“Title VII”). The
district court granted Westward’s motion for summary judgment on
all claims, and Hockman appealed. We now affirm.
I. Background
Westward owns certain newspapers in East Texas that are
involved in this lawsuit: the Grand Saline Sun in Grand Saline,
*
District Judge of the Western District of Louisiana,
sitting by designation.
1
the Wood County Democrat in Quitman, and the Edgewood Enterprise
in Edgewood. At all times relevant to this lawsuit, Nell French
was the publisher of all three papers and Hockman’s immediate
supervisor. Oscar Rogers ran a commercial printing press from the
back of the Grand Saline Sun office. Aggie McDonald was the
composition and graphics manager. Molly Harvill was the office
manager.
Hockman actually worked for Westward twice. First, she
worked as the assistant editor of the Edgewood Enterprise from
July 30, 1998 to June 30, 1999. The reason for Hockman’s 1999
departure is disputed: Hockman claims that she left because of a
“personality clash” with the paper’s publisher at that time, Jan
Adamson; Westward claims that Hockman was involved in a theft.
Regardless of the reason, Hockman was rehired in April 2001 as an
editor for the Grand Saline Sun.
When Hockman rejoined the Westward team, she was provided
with a copy of the employee handbook, which contains the company’s
antiharassment policy. The policy provides for the following in
the event of a complaint:
If an employee believes that he or she is being
subjected to harassment of any kind, the incident(s)
must be reported promptly to his/her supervisor. If the
employee feels that it would be inappropriate to report
the matter to the immediate supervisor, or the matter is
not satisfactorily resolved at this level, the employee
should report the incident(s) directly to the Director,
Human Resources at 440-746-1701.
On July 24, 2001, Hockman signed an acknowledgement form,
2
attesting that she had received a copy of the handbook and
understood its provisions.
Hockman claims that soon after she returned to Westward,
Rogers began to harass her in the following ways: First, Rogers
commented on the body of a former Westward employee, Sheila
Ledesma. Specifically, Hockman claims that “[Rogers] would tell
her that Sheila Ledesma had a nice behind and body.” Next,
Hockman claims that beginning in July of 2001, Rogers would brush
up against her breasts and behind. Third, Hockman claims that on
one occasion, Rogers “slapped [her] behind with a newspaper.”
Fourth, Rogers once attempted to kiss Hockman. Fifth, on more
than once occasion, Rogers asked Hockman to come in early so that
they could be alone together. Finally, Rogers once stood in the
doorway of the ladies’ restroom as Hockman was washing her hands.
Rogers stepped aside, however, when Hockman exited the restroom.
On October 11, 2001, Hockman and her coworker, Harvill, told
their supervisor, French, that they had been harassed by Rogers.
The parties dispute what happened next. Hockman claims that she
did not go to French before October of 2001 because she was
embarrassed. However, Hockman discussed Rogers’s behavior with
Harvill and McDonald before approaching French. Both women
allegedly told Hockman that they had also been harassed by Rogers.
According to Hockman, she and Harvill told French that Rogers
had touched them inappropriately, and Hockman told French that
3
Rogers had once tried to kiss her. In response, French asked
Hockman how she wanted the situation handled. Hockman claims that
she responded that she was not sure what French was supposed to do
in this situation, that she was sure there was a formal procedure
for handling such complaints, and that French should take action
in compliance with that procedure. Hockman claims that French
then directed her to a sexual harassment policy that was
purportedly for a previous company named Howard and Bluebonnet and
was not in effect for Westward during the relevant time period.
Hockman claims that to her knowledge, French never acted on her
complaint; Hockman reapproached French once or twice, but French
again asked Hockman what she was supposed to do about the
situation.
Westward’s account of the October 11 and post-October 11
events is completely different. According to Westward, when
approached by Hockman on October 11, 2001, French asked her if she
wanted to lodge a formal complaint and Hockman said that she did
not; she did not want to jeopardize her working relationship with
Rogers. French claims that she informed Hockman that Rogers’s
actions may constitute sexual harassment and that they could get
fired if they did not file a formal complaint. Hockman then told
French that McDonald would corroborate her allegations, but she
nonetheless remained unwilling to file a formal complaint against
Rogers. Rather, Hockman told French that she wanted French to
4
talk to McDonald before taking any formal action.
French claims that she immediately investigated Hockman’s
allegations. First, she contacted six other Westward employees
who had worked with Rogers. Each stated that they had neither
witnessed nor suffered any harassment at the hands of Rogers.
Next, on approximately October 23, 2001, French met with
McDonald, who refused to support Hockman’s allegations. McDonald
claimed that she had not experienced inappropriate behavior by
Rogers, nor was she aware of any other Westward employee towards
whom Rogers had engaged in sexually inappropriate behavior.
For the next three weeks, French followed up with Hockman
weekly, asking Hockman whether she was ready to file a formal
complaint against Rogers. According to French, Hockman
consistently refused to file a complaint. French thereafter
concluded that Hockman’s allegations were meritless.
Hockman, however, asserts that she was not hesitant about
filing a formal complaint against Rogers after she spoke to French
on October 11. Rather, according to Hockman, French had
previously told her “never to go above [French’s] head.” Hockman
contends that because of French’s directive, Hockman believed that
she would be fired if she reported the harassment to anyone else.
Westward claims that in the fall of 2001, the Chief Operating
Officer of the Sun and the Enterprise, J. Tom Graham, began
analyzing ways to manage the papers more efficiently because both
5
papers were doing poorly financially. Because French divided her
time among three different Westward papers, Graham decided to
create an assistant publisher position to manage the business and
editing duties of the Sun and the Enterprise. With the creation
of such a position, Hockman’s editor position would become
unnecessary.
Graham wanted someone with business experience to be the new
assistant editor; Hockman had none. Accordingly, Graham concluded
that she was not qualified for the new job. Hockman was
consequently set to be discharged upon the creation of the new
position. On February 7, 2002, Wilbur Callaway was offered the
assistant editor position. Because Callaway had requested that
his wife work with him, Westward offered her a position answering
telephones and assisting Callaway at the Edgewood Enterprise.
On February 19, 2002, Graham; Robert McMaster, the Chief
Executive Officer of Westward; and Gina Fisher, Westward’s
Director of Human Resources, received a letter from Hockman’s
attorney stating that Hockman intended to file a complaint with
the Equal Employment Opportunity Commission (“EEOC”) asserting
claims of sexual harassment and sex discrimination against
Westward. According to Westward, Fisher immediately launched an
investigation. On February 20, 2002, Fisher contacted
Hockman——who refused to speak with Fisher out of her attorney’s
presence——and French, who told Fisher that Hockman had not wanted
6
to pursue a formal complaint on October 11, 2001. That same day,
Fisher contacted McDonald, who stated that she had not witnessed
any harassment by Rogers. Fisher also called Bill Holder, the
Regional Vice President of Westward. Fisher asked Holder to be
present during a phone conversation between Fisher and Rogers.
During that conversation, Fisher informed Rogers of the
allegations against him, which he emphatically denied.
The next day, Fisher spoke to Hockman by telephone while
Hockman was at her attorney’s office. Fisher asked Hockman why
she had never contacted her after the October 11 meeting with
French. Hockman stated that French had told her “never to go
above her head.”
At that time, Graham, McMaster, and Fisher decided to
separate Rogers and Hockman, who were both working at the Grand
Saline Sun. Westward made Hockman the editor of the Edgewood
Enterprise. Although, according to Westward, the company had
previously decided to discharge Hockman when Callaway’s employment
began, given the pending harassment claim, Westward now believed
that it was better to separate Hockman from Rogers than to
terminate her employment. To afford keeping Hockman on as a
Westward employee, Westward rescinded its offer of employment to
Callaway’s wife.
Hockman claims that the Enterprise facility was filled with
“numerous spiders and webs, hundreds of cricket corpses, dead
7
rats, maggots, old newspapers, thick dust, bodily fluids on the
desk and wall and feces and urination,” and that she had to clean
up this mess in retaliation for her allegations against Rogers.
Westward, of course, paints a different picture of the Enterprise
and Edgewood. Westward claims that as editor of the Enterprise,
Hockman’s pay and benefits did not change; thus, this was a purely
lateral transfer. Moreover, Hockman was reimbursed for mileage
between Grand Saline (where she lived) and Edgewood (where she
worked), even though Hockman’s children attended school in
Edgewood and she had often made that commute when she worked at
the Sun. Finally, Hockman had worked at the Enterprise during her
first stint of employment with Westward.
According to Westward, Fisher was continuing her
investigation during this time. On February 28, 2002, she again
interviewed both French and Rogers. From March 1st through 4th,
she interviewed current and former Westward employees, almost all
of whom denied observing or being aware of any sexually
inappropriate behavior by Rogers. The only interviewee who told
Fisher of any potentially inappropriate behavior by Rogers was Jan
Adamson, a former publisher of the Sun. Adamson told Fisher that
approximately seven or eight years before, Rogers had made
“innuendos” at work. However, Adamson also explained that all of
the employees were “raunchy in the office.” Adamson had been
terminated by Westward, and told Fisher that she hoped “Westward
8
would get theirs” and that she “hated Westward.” Because of
Adamson’s bias and the lack of evidence to support Hockman’s
allegations, Fisher determined that there was no corroborating
evidence of harassment or sexually inappropriate behavior by
Rogers.
On March 6, Fisher again contacted McDonald. McDonald again
denied experiencing any harassment by Rogers. However, she did
tell Fisher about discriminatory remarks Hockman had made about
Rogers before she had been transferred to Edgewood. According to
McDonald, Hockman had learned that a grand jury had refused to
indict Hockman’s husband’s ex-wife on a trespassing charge.
Rogers had served as the foreman of the grand jury that had
considered the charge. Outraged by the grand jury’s decision to
“no-bill” her husband’s ex-wife, Hockman allegedly stated that
“Rogers’s job would be gone by next Friday” and referred to him by
the “N word.”
On March 13, 2002, Fisher called Rogers and French to tell
them that the results of her investigation were inconclusive.
Fisher warned Rogers, however, that any sexually inappropriate
behavior was prohibited. The following day, Fisher made a
conference call to Hockman and French. During this call, Fisher
told Hockman that there was no evidence to support her allegations
and warned her not to engage in racially inappropriate behavior at
work.
9
Hockman was still working at the Edgewood Enterprise when
Fisher concluded her investigation. As part of her duties at the
Enterprise, Hockman was responsible for helping to “paste up” the
paper——stories are laid out on sheets to later be printed as part
of the newspaper. Paste ups were done on Tuesday of each week at
the Wood County Democrat facility in Quitman (the Edgewood
facility lacked the appropriate equipment). At the beginning of
April 2002, Hockman missed three consecutive work days, one of
which was a paste-up day. Hockman had also missed the paste-up
day of the previous week. According to Westward, on April 2,
2002, Holder issued Hockman a written warning that her absences
were inexcusable. Two days later, on April 4, 2002, Hockman
tendered her resignation to Westward.
Hockman characterizes the “paste-up incident” much
differently than does Westward. Hockman claims that Rogers’s
harassment caused her to develop a sleeping disorder that required
medication and several absences from work. Because of these
absences, Holder issued her a directive “not to be sick on
Tuesdays” and ordered her to provide written confirmation from her
doctors’ offices reflecting the times and dates of any future
appointments. Hockman quit on April 4, 2002, claiming that her
doctor instructed her to resign from Westward because the
harassment was having a negative effect on her health. She claims
that she was constructively discharged from Westward.
10
II. Procedural History
On February 27, 2002, Hockman filed a claim with the EEOC
alleging sexual harassment, retaliation, and constructive
discharge in violation of Title VII. On July 25, 2002, the EEOC
issued Hockman a determination letter finding insufficient
evidence of her allegations. On October 23, 2002, Hockman filed
suit against Rogers and Westward alleging sexual harassment,
retaliation, constructive discharge, and sex discrimination
against Westward and various state law claims against Rogers. On
September 18, 2003, the district court granted Westward’s motion
for summary judgment on all federal claims against Westward and
declined to exercise supplemental jurisdiction over Hockman’s
state law claims against Rogers.1
Hockman appealed, claiming that the district court erred in
granting Westward’s motion for summary judgment as to her hostile-
work-environment, retaliation, and constructive discharge claims.
We will consider each claim in turn.
III. Summary Judgment Standard
We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court. Shepherd
v. Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir.
1999). Summary judgment is appropriate if “the pleadings,
1
The district court dismissed Hockman’s state law claims
against Rogers without prejudice.
11
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the nonmoving party
is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c). We review the record in the light most favorable to the
nonmovant and draw all reasonable inferences in her favor. Fabela
v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003).
IV. Discussion
A. Hostile Work Environment
Hockman first claims that she was subjected to a hostile work
environment in violation of Title VII. A hostile-work-environment
claim consists of five elements: (1) the plaintiff belongs to a
protected group; (2) she was subjected to unwelcome sexual
harassment; (3) the harassment complained of was based on sex; (4)
the harassment affected a term, condition, or privilege of her
employment; and (5) her employer knew or should have known of the
harassment and failed to take prompt remedial action. Jones v.
Flagship Int’l, 793 F.2d 714, 719–20 (5th Cir. 1986). Only
elements four and five are in dispute.
1. Whether the Harassment Affected a Term, Condition,
or Privilege of Employment
For harassment to affect a term, condition, or privilege of
employment, it must be both objectively and subjectively abusive.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993); Butler
v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998).
12
Whether an environment is objectively hostile or abusive is
determined by considering the totality of the circumstances.
Harris, 510 U.S. at 23. Although no single factor is required,
courts look to (1) the frequency of the discriminatory conduct;
(2) its severity; (3) whether it is physically threatening or
humiliating as opposed to a mere offensive utterance; (4) whether
it unreasonably interferes with an employee’s work performance,
id. at 23; and (5) whether the complained-of conduct undermines
the plaintiff’s workplace competence, Butler, 161 F.3d at 270.
Because Rogers’s harassment was nonsevere and nonpervasive, the
district court properly granted Westward’s motion for summary
judgment on Hockman’s hostile-work-environment claim.
To survive summary judgment, the harassment must be “so
severe and pervasive that it destroys a protected classmember’s
opportunity to succeed in the work place.” Shepherd, 168 F.3d at
874. The alleged conduct must be more than rude or offensive
comments, teasing, or isolated incidents. Id. Moreover,
“implicit or explicit in the sexual content [of the harassment]
[must be] the message that the plaintiff is incompetent because of
her sex.” Butler, 161 F.3d at 270. Hockman has not put forth
enough evidence to raise a fact issue with regard to this element.
First, the record is unclear as to how, exactly, Rogers
touched Hockman inappropriately. Hockman testified that the first
incident of harassment that she remembers occurred when Rogers
13
“would sort of brush up against [her].” Hockman admits, though,
that these brushings were neither severe nor pervasive. In fact,
at first she thought they were accidental, stating that “just as
quickly as it started, with a couple of exceptions——just as
quickly as it started, it ended . . . . And once it was over, it
was over.”
Second, we have found judgment as a matter of law appropriate
in cases with facts more egregious than those that Hockman alleges
here. In Shepherd v. Comptroller of Public Accounts, for example,
Shepherd testified that her coworker, Moore, told her, “your
elbows are the same color as your nipples,” and “you have big
thighs” while he simulated looking under her dress. 168 F.3d at
872. Moore stood over Shepherd’s desk on several occasions and
tried to look down her clothing. Id. He also “touched her arm on
several occasions, rubbing one of his hands from her shoulder down
to her wrist while standing beside her.” Id. Finally, on two
occasions, after coming in late to an office meeting, “Moore
patted his lap and remarked, ‘here’s your seat.’” Id.
In Shepherd, we held that Moore’s comments were not as
frequent or severe as those we had previously found to alter the
workplace environment. Id. at 874–75. To illustrate how frequent
harassment must be to sustain a hostile-work-environment claim
under Title VII, we contrasted the facts of Shepherd with two
other Fifth Circuit cases in which the harassment was severe
14
enough for the plaintiffs to withstand the defendants’ motions for
judgment as a matter of law. Id. at 875.
In Farpella-Crosby v. Horizon Health Care, the defendant’s
comments were considered frequent and severe enough to sustain a
jury verdict for the plaintiff. 97 F.3d 803, 805 (5th Cir. 1996).
In that case, Defendant Blanco frequently made comments
“attributing Farpella-Crosby’s large number of children to a
proclivity to engage in sexual activity.” Id. Specifically,
Farpella-Crosby complained of the following behavior by Blanco:
Blanco repeatedly commented that he “knew what she
liked to do” because she had seven children and that she
“must not have a television.” At a baby shower held at
the facility for another employee, Blanco joked to the
group that Farpella-Crosby “[didn’t] know how to use
condoms.” Blanco also frequently inquired about
Farpella-Crosby’s sexual activity. He would often
question her . . . about where [she] had been the night
before (while off duty), whether [she] had taken men
home, and whether [she] “[had gotten] any.” Farpella-
Crosby . . . testified that Blanco made similar comments
two or three times a week. [She] testified that the
comments were so frequent that she could not possibly
remember each instance. Blanco threatened Farpella-
Crosby with her job on numerous occassions when she
asked him to stop making these comments.
On one occasion, after Farpella-Crosby had eaten
lunch in her office with a boyfriend, Blanco said that
“when you open the door [to the office], the smell of
fish just hits you in the face. You shouldn’t be doing
that kind of think at work.” . . . Blanco essentially
admitted that he did question Farpella-Crosby about her
personal life, but claimed that he did so because he
believed the lack of sleep resulting from sexual
activity could affect her work performance.
Id. (last set of brackets in original). On these facts, we held
that “there is substantial evidence from which the jury could have
15
concluded that Blanco’s comments and questions were sufficiently
severe and pervasive as to alter the conditions of [Farpella-
Crosby’s] employment and create an abusive working environment.”
Id. at 806.
The harassment alleged by the plaintiff in Waltman v.
International Paper Company, 875 F.2d 468 (5th Cir. 1989), was
worse. There, we reversed summary judgment for the defendant on
the following facts: One of the defendant’s employees several
times broadcast obscenities directed at Waltman over the public
address system. Id. at 470. After that incident, “other
employees began making suggestive comments to Waltman.” Id. at
470–71. Waltman’s supervisor urged her to have sex with a
coworker. Id. at 71. On several occasions, he also “pinched her
buttocks with pliers and tried to put his hands in her back
pockets.” Id. Her supervisor and coworkers constantly made such
remarks as “I would like a piece of that” (referring to Waltman).
Id.
Over the course of about three years, Waltman received over
thirty pornographic notes in her locker. Id. “Sexually explicit
pictures and graffiti were drawn on the walls of the powerhouse,
on the restroom walls and on the elevator.” Id. Some of these
drawings were directed at Waltman.2 Waltman also testified that
2
For an explicit description of the graffiti, see Waltman,
875 F.2d at 471 n.2.
16
many of the men would leave their lockers open and that the
lockers contained pornographic pictures and used tampons. Id. at
471 & n.1. Waltman’s supervisor testifed that the walls of the
work space contained drawings of naked men and women. Id. at 471.
On one occasion, one employee told another that “Waltman was
a whore and that she would get hurt if she did not keep her mouth
shut.” Id. On another occasion, Waltman’s coworker told her that
he “would cut off her breast and shove it down her throat.” Id.
That same coworker later “dangled Waltman over a stairwell, more
than thirty feet from the floor.” Id. On other occasions,
Waltman’s coworkers grabbed her breasts and thighs. Id.
Waltman testified that eighty percent of the men in her work
place had made sexual comments to her at some point, and a week
did not go by without such comments being made. Id. On these
facts, we held that Waltman had raised a fact issue regarding the
existence of a hostile work environment at her work place. Id. at
478.
The Supreme Court has repeatedly stated that “simple teasing,
offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the ‘terms
and conditions of employment.’” Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998) (citation omitted)(citing Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).
Therefore, contrasting the facts in Shepherd to those in Farpella-
17
Crosby and Waltman, we held that Moore’s comments were “boorish
and offensive,” but not severe. 168 F.3d at 874. Rather, “each
comment made by Moore [was] the equivalent of a mere utterance of
an epithet that engenders offensive feelings,” but did not suffice
to survive summary judgment. Id. (citing Harris, 510 U.S. at
21–22). In short, Moore’s comments were not in the same league as
that behavior for which courts afford relief under Title VII. Id.
at 874–75.
Here, Hockman claims that in the approximate year and a half
that she worked for Westward, Rogers harassed her in the following
ways: (1) he once made a remark to Hockman about another
employee’s body, (2) he once slapped her on the behind with a
newspaper, (3) he “grabbed or brushed” against Hockman’s breasts
and behind, (4) he once held her cheeks and tried to kiss her, (5)
he asked Hockman to come to the office early so that they could be
alone, and (6) he once stood in the door of the bathroom while she
was washing her hands. This conduct is perhaps even less
egregious than that alleged in Shepherd. Cf. Shepherd, 168 F.3d
at 872 (describing the harassment, which included Moore remarking
that “[Shepherd’s] elbows [were] the same color as [her] nipples,”
commenting on the size of Shepherd’s thighs while pretending to
look under her desk, and attempting to look down Shepherd’s
clothing). At best, Hockman’s allegations are on the same plane
as those in Shepherd. Shepherd’s allegations were insufficient in
18
that case, and Hockman’s are insufficient here.
Rogers’s remarks to Hockman about Ledesma’s body and requests
to be alone with Hockman are offhand comments that are boorish and
offensive, but not severe. Similarly, the newspaper slap amounts
to “simple teasing,” which “will not amount to discriminatory
changes in the ‘terms and conditions of employment.’” Faragher,
524 U.S. at 788. The attempted kiss and bathroom incident were
isolated incidents that were not serious. See id.
The “grabbings” or “brushings” against Hockman’s breasts or
behind, by her own account, were also not severe. Hockman did not
even estimate how many times this conduct occurred.3 Cf. Waltman,
875 F.2d at 471 (“Waltman estimated that eighty percent of the men
[at work] made sexually suggestive comments to her,” and
“testified that a week did not go by without a co-worker directing
a sexual comment at her.”); Farpella-Crosby, 97 F.3d at 805
(describing conduct directed at the plaintiff “two or three times
a week,” “repeatedly,” “often,” and on “numerous occasions”).
The conduct described by Hockman is simply not in the same
league as that at issue in the Farpella-Crosby and Waltman cases.
3
During Hockman’s deposition, defense counsel asked her how
many times the “grabbings” or “brushings” had occurred, and
Hockman responded: “[A]ll I can say is, I know that I would
remember specific incidents if it was just two or three or six
maybe. But I don’t.” Defense counsel followed up on the
question, asking Hockman if she could at least estimate how many
times Rogers touched her, to which Hockman responded, “I——I
just——I don’t know. I can’t give you anything.”
19
It is similar to that alleged in Shepherd, and we affirmed summary
judgment for the defendant in that case. 168 F.3d at 872. As a
matter of law, the conduct described by Hockman was not so severe
and pervasive as to affect the terms, conditions, or privileges of
her employment. The district court properly granted summary
judgment for Westward on Hockman’s hostile-work-environment claim.
2. Whether Westward Failed to Take Prompt Remedial
Action
Even if Rogers’s conduct did affect a term, condition, or
privilege of Hockman’s employment, she still cannot succeed on her
hostile-work-environment claim. There must be evidence that
Westward failed to take prompt remedial action upon learning of
the alleged harassment. Jones, 793 F.2d at 719–20. To the
contrary, Westward took prompt remedial action as a matter of law,
because Hockman unreasonably failed to take advantage of
corrective opportunities provided by Westward.
“When a company, once informed of allegations of sexual
harassment, takes prompt remedial action to protect the claimant,
the company may avoid Title VII liability.” Nash v. Electrospace
Sys., Inc., 9 F.3d 401, 402 (5th Cir. 1993). “‘Prompt remedial
action’ must be ‘reasonably calculated’ to end the harassment.”
Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606,
615 (5th Cir. 1999) (quoting Jones, 793 F.2d at 719–20). What
constitutes prompt remedial action depends on the facts of the
case; “not every response by an employer will be sufficient to
20
discharge its legal duty.” Id. at 615 (quoting Waltman, 875 F.2d
at 479). “Rather, the employer may be liable despite having taken
remedial steps if the plaintiff can establish that the employer’s
response was not ‘reasonably calculated’ to halt the harassment.”
Id. at 615–16.
We have often found that an employer took prompt remedial
action as a matter of law. Id. at 616 (citing Hirras v. Nat’l
R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir. 1996) (listing
Waymire v. Harris County, 86 F.3d 424, 428 (5th Cir. 1996); Carmon
v. Lubrizol Corp., 17 F.3d 791, 794–95 (5th Cir. 1994); Dornhecker
v. Malibu Grand Prix Corp., 828 F.2d 307, 309–10 (5th Cir. 1987)).
One factor we have found dispositive is whether the plaintiff
reasonably took advantage of corrective opportunities provided by
the employer. See Woods v. Delta Beverage Group, Inc., 274 F.3d
295, 300 n.3 (5th Cir. 2001). The district court granted summary
judgment on the failure-to-take-prompt-remedial-measures factor
for this very reason; Hockman unreasonably failed to bring her
complaint to a higher-echelon employee (Fisher) though she was
dissatisfied with the way French handled the situation. Hockman’s
claims that she was told “not to go above French’s head,” and that
French directed her to an outdated harassment policy for another
company, even if true, do not overcome the undisputed facts that
(1) Hockman received the Westward employee handbook containing the
company’s antiharrassment policy; (2)the policy provides that if
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the employee does not feel that her allegation is being handled
satisfactorily by his or her supervisor, then she should report
the incident directly to the Director of Human Resources; (3) she
acknowledged her receipt of the handbook and understanding of its
provisions with her signature; and (4) despite her awareness,
there is no evidence that Hockman availed herself of any of the
company’s provisions after speaking to French, several months
after the alleged harassment began. The district court held that
whether Hockman subjectively felt that she could not “go over
French’s head” is immaterial to the fact that the policy she
acknowledged directed her to do just that. This analysis is in
accord with Woods v. Delta Beverage Group, where we applied an
objective standard. 274 F.3d at 301 (“A reasonable woman would
have felt compelled to report Eddy’s alleged post-July 7
harassment to her supervisors. Therefore, [summary judgment was
appropriate.]”). We therefore affirm summary judgment for Westward
on Hockman’s sexual harassment claim; Hockman cannot prove that
Westward failed to take prompt remedial action where she
unreasonably failed to take advantage of corrective opportunities
provided by Westward.
B. Retaliation
Hockman next claims that Westward retaliated against her for
filing her EEOC complaint. Title VII provides that “[i]t shall be
an unlawful employment practice for an employer to discriminate
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against any of his employees . . . because he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). We analyze retaliation claims under the
McDonnell Douglas burden-shifting framework. See Chaney v. New
Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir.
1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–05 (1973)).
To make out a prima facie case of retaliation, Hockman must
provide evidence of three things: (1) she engaged in protected
conduct, (2) she was thereafter subjected to an adverse employment
action, and (3) the adverse employment action was taken in
response to her protected conduct. Chaney, 179 F.3d at 167. If
Hockman succeeds, the burden then shifts to Westward to articulate
a legitimate, nonretaliatory reason for the adverse employment
action. Id. If Westward carries this burden, then Hockman must
present evidence showing that Westward’s proffered rationale was
pretextual and that engaging in the protected activity was the
but-for cause of the adverse employment action.4 Id.
The filing of an EEOC complaint is clearly a protected
activity within the meaning of the statute. Walker v. Thompson,
4
Hockman has not alleged that Westward acted with mixed
motives. Cf. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409,
414–15 (2003) (explaining the difference between pretext and
mixed-motive retaliation claims).
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214 F.3d 615, 629 (5th Cir. 2000) (citing Dollis v. Rubin, 77 F.3d
777, 781 (5th Cir. 1995)). Hockman has therefore satisfied the
first element of her prima facie case.
Next, Hockman must present evidence showing that Westward
subjected her to an adverse employment action. In determining
whether a defendant’s action constitutes an adverse employment
action, “we are concerned solely with ultimate employment
decisions.” Id. (citing Webb, 139 F.3d at 540). “[U]ltimate
employment decisions include acts ‘such as hiring, granting leave,
discharging, promoting, and compensating.’” Id. (quoting Dollis,
77 F.3d at 782); Green v. Adm’rs of the Tulane Educ. Fund, 284
F.3d 642, 657 (5th Cir. 2002). We have previously found that the
following actions on the part of employers did not constitute
ultimate employment decisions: refusing to consider the plaintiff
for a promotion, refusing to allow her to attend a training
conference, and criticizing her work to government vendors,
Dollis, 77 F.3d at 779–80; the verbal threat of being fired,
reprimanding the plaintiff for not being at her assigned work
station, a missed pay increase, and being placed on “final
warning,” Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th
Cir. 1997); changing locks, restructuring office procedures, and
clarifying job duties, Green, 284 F.3d at 657–58; and a visit to
the plaintiff’s home by two of her supervisors, one of whom was
included in the EEOC charge, to instruct her to report to the
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company’s medical center if her claimed illness was work related,
Mattern, 104 F.3d at 705. By contrast, we have found the denial
of paid or unpaid leave to constitute an ultimate employment
decision, Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d
512, 521–22 (5th Cir. 2001), and have suggested that an unwanted
reassignment may also constitute an ultimate employment decision,
Walker, 214 F.3d at 629.
In this case, Hockman claims that Westward retaliated against
her in the following ways: (1) transferring her to the Edgewood
Enterprise, (2) placing her under the supervision of Wilbur
Callaway, (3) treating her with hostility, (4) instituting a
“baseless” racial harassment investigation against her, (5)
issuing her a directive “not to be sick on Tuesdays,” and (6)
requiring detailed documentation of any future doctors’
appointments. In light of the precedent discussed above, the only
allegation made by Hockman that might conceivably be classified as
an adverse employment action is her transfer to the Edgewood
Enterprise. The other actions are not ultimate employment
decisions and therefore do not qualify as adverse employment
actions.
Hockman’s transfer to the Edgewood Enterprise likewise fails
to constitute an adverse employment action, however, because it
was a purely lateral move. A purely lateral transfer cannot
constitute an adverse employment action. Burger v. Central Apt.
25
Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999). We have
previously held a transfer to be purely lateral where the new
position had “the same job title, benefits, duties, and
responsibilities” as the old position. Id. As the editor of the
Edgewood Enterprise, Hockman retained the same pay, duties, and
benefits; was reimbursed for her mileage from Grand Saline to
Edgewood; and although the Edgewood facility was temporarily
filthy, any filth was cleaned up within a week or two of Hockman’s
arrival. Therefore, this was a purely lateral transfer, and
Hockman has failed to make out a prima facie case of retaliation.
Accordingly, the district court properly granted Westward’s motion
for summary judgment.
C. Constructive Discharge
Finally, Hockman claims that she was constructively
discharged from Westward. To survive summary judgment on a
constructive discharge claim, the plaintiff must provide evidence
that working conditions were “so intolerable that a reasonable
employee in her position would [have felt] compelled to resign.”
Webb v. Cardiothoracic Surgery Assoc. of N. Tex., 139 F.3d 532,
539 (5th Cir. 1998). Mere harassment, alone, is insufficient;
rather, the plaintiff must show “aggravating factors” to justify
departure. See Barrow v. New Orleans Steamship Ass’n, 10 F.3d
292, 297 (5th Cir. 1994). Such factors include (1) demotion; (2)
reduction in salary; (3) reduction in job responsibilities; (4)
26
reassignment to menial or degrading work; (5) reassignment to work
under a younger supervisor; (6) badgering, harassment, or
humiliation by the employer calculated to encourage the employee’s
resignation; or (7) offers of early retirement or continued
employment on terms less favorable than the employee’s former
status. Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.
2000). Ultimately, to succeed on a constructive discharge claim,
the plaintiff must show a greater degree of harassment than is
required for a hostile work environment claim. Benningfield v.
City of Houston, 157 F.3d 369, 378 (5th Cir. 1998).
Hockman’s constructive discharge claim fails for three
reasons. First, Hockman reiterates the same facts that she
alleges constituted harassment by Rogers and retaliation by
Westward; she does not allege facts that provide the aggravation
required to support a claim of constructive discharge. Second,
Hockman alleges that Harvill overheard Callaway say that he would
get a bonus from Westward if “he ran Harvill off.” Hockman claims
that it is reasonable to assume this deal applied to her as well.
Yet Hockman cannot rely on such speculation to survive summary
judgment. In Forsyth v. Barr, we made clear that summary judgment
is appropriate where the nonmoving party “rests merely upon
conclusory allegations, improbable inferences, and unsupported
speculation.” 19 F.3d 1527, 1533 (5th Cir. 1994). That is what
Hockman has done here.
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Finally, Westward’s prompt remedial measures are fatal to
Hockman’s constructive discharge claim. In Dornhecker v. Malibu
Grand Prix Corporation, the plaintiff resigned one day after
reporting the harassment to her company’s president. 828 F.2d
307, 308–09 (5th Cir. 1987). Her employer, however, had assured
the plaintiff that she would never have to work with her harasser
again. Id. at 308. We reversed a judgment for the plaintiff
because her resignation had been unreasonable. Id. at 310. In
doing so, we stated that the plaintiff had not given her employer
a fair opportunity to remedy the situation. Id.
Here, upon learning of Hockman’s complaint, Westward
immediately transferred her to Edgewood, separating her from
Rogers. Hockman does not allege that she was sexually harassed
after being transferred. Westward’s prompt remedial action
therefore precludes Hockman’s constructive discharge claim. The
district court properly granted Westward’s motion for summary
judgment.
V. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court as to all claims.
AFFIRMED.
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