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 2001-06

St Germaine v. Amoco Production Co ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31290
Summary Calendar
DONNA ST. GERMAINE,
Plaintiff-Appellant,
versus
AMOCO PRODUCTION CO. ET AL.,
Defendants,
AMOCO PRODUCTION CO.,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-300
--------------------
June 21, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Donna St. Germaine appeals from the dismissal of her sexual
harassment claim following the district court’s grant of summary
judgment in favor of Amoco.    We review the district court’s
decision de novo.     E.g., Skotak v. Tenneco Resins, Inc.,
    953 F.2d 909
    , 912 (5th Cir. 1992).
St. Germaine has failed to establish a genuine issue of
material fact concerning whether Amoco was her employer.    See
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-31290
-2-
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
    477 U.S. 242
    , 256 (1986)(party opposing properly supported motion for
summary judgment must present facts showing there is a genuine
issue for trial).
St. Germaine has also failed to present material facts
showing that genuine issues exist whether Amoco was negligent in
its training and supervision of LeBlanc and whether Amoco had
knowledge of other alleged harassment involving LeBlanc prior to
its investigation of St. Germaine’s complaint.
We do not reach St. Germaine’s argument, raised for the
first time on appeal, that Title VII jurisprudence on “joint
employment” is applicable to her case.   “‘Th[is] Court will not
allow a party to raise an issue for the first time on appeal
merely because a party believes that he might prevail if given
the opportunity to try a case again on a different theory.’"
Leverette v. Louisville Ladder Co.,
    183 F.3d 339
    , 342 (5th Cir.
1999), cert. denied,
    528 U.S. 1138
     (2000)(quoting Forbush v. J.C.
Penney Co.,
    98 F.3d 817
    , 822 (5th Cir. 1996)).   St. Germaine did
not assert this theory in the district court and cannot present
this issue on appeal.
Even if we were to find that Amoco is St. Germaine’s
employer as defined by La. Rev. Stat. Ann. 23:301 et seq.,
liability attaches to the employer for sexual harassment only
where it is shown that the alleged conduct occurred during the
course and scope of the harasser’s employment.   See Alphonse v.
Omni Hotels Mgmt. Corp.,
    643 So. 2d 836
    , 840 (La. Ct. App. 1994).
St. Germaine did not appeal the district court’s determination
No. 00-31290
-3-
that LeBlanc was not in the course and scope of his employment at
the time of the alleged assault.   “[C]ontentions not briefed are
waived and will not be considered on appeal.”    Trust Co. of La.
v. N.N.P., Inc.,
    104 F.3d 1478
    , 1485 (5th Cir. 1997).
St. Germaine’s argument that her claim for negligent
infliction of emotional distress is still viable is meritless
because the district court’s ruling that Amoco was not
vicariously liable relieves Amoco of all liability for LeBlanc’s
conduct.    LeBlanc’s denial of the alleged assault does not create
a genuine issue of material fact for purposes of Amoco’s summary
judgment.   Resolution of St. Germaine’s claim against Amoco via
summary judgment procedure was appropriate.
AFFIRMED.