Estep v. Univ of Texas at Au

THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
No. 97-50868
Summary Calendar
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MYRNA ESTEP,
Plaintiff-Appellant,
versus
UNIVERSITY OF TEXAS AT AUSTIN,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Texas
(A-96-CV-74)
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June 5, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
In February 1996, Myrna Estep brought suit against The University of Texas at Austin
claiming that she had been sexually harassed and retaliated against in violation of Title IX. The
district court granted the University’s motion for summary judgment. Estep appealed. We affirm.
In 1994, Estep was a doctoral candidate in the University’s Philosophy Department. In
her complaint, she alleges that her doctoral advisor, Dr. Allaire, once grabbed her by the
shoulders in a sexually overpowering way.1 Estep promptly informed the chair of the Philosophy
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
We assume arguendo that the one incident alleged by Estep rises to the level of actionable
discrimination under Title IX. But cf. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806
Department that Dr. Allaire had “crossed the line” and later filed a formal complaint describing
the incident with the University.
On appeal, Estep contends that she produced sufficient evidence to create a genuine issue
of fact concerning the University’s liability for Dr. Allaire’s conduct. Both parties agree that in
response to the University’s motion for summary judgment, Estep needed to produce evidence
showing: 1) that the University “knew that there was a substantial risk” that this harassment by
Dr. Allaire would occur; and 2) that the University, when it knew of this risk or of the alleged
harassment, failed to take “appropriate remedial action” under the circumstances. Rosa H. v. San
Elizario Indep. Sch. Dist., 106 F.3d 648, 652-53, 660-61 (5th Cir. 1997).
To show that the University knew that Dr. Allaire posed a substantial risk of sexually
harassing a female doctoral candidate, Estep produced evidence that the chair of the Philosophy
Department was aware of Dr. Allaire’s reputation for being flirtatious and of a rumor that Dr.
Allaire had been romantically interested in a graduate student in the 1980s.2 We agree with the
district court’s conclusion that this summary judgment evidence fails to create a genuine issue of
material fact as to whether the University knew that there was a substantial risk that Dr. Allaire
would sexually harass a female doctoral candidate.
(5th Cir. 1996) (noting that single offensive utterance does not rise to the level of actionable
discrimination under Title VII). Estep, however, lacks standing to pursue discrimination claims other
than her own. Lowrey v. Texas A&M Univ., 117 F.3d 242, 251 (5th Cir. 1997). We therefore decline
to address her claims that the Philosophy Department discriminated against other female graduate
students.
2
Estep’s remaining evidence is irrelevant: a withdrawn complaint of sexual harassment
against Dr. Allaire made by a professor during the 1980s is not evidence o f his likely behavior
towards graduate students in 1994; a complaint of sexual harassment made by a graduate student
after the alleged incident between Estep and Dr. Allaire is not evidence of notice; a sexual harassment
complaint filed against professor Hankinson is not evidence of conduct attributable to Dr. Allaire.
2
Estep also claims on appeal that the University’s investigation of her complaint was not an
appropriate remedial action because “Professor Allaire [continued] to have daily contact with
[her] in the Philosophy Department and continued to harass her” during the investigation.3 The
only support for this allegation, however, is Estep’s assertion that Dr. Allaire once menacingly
brushed against a newsletter that she was reading while she was standing in a hallway. We find
that this alleged encounter in the Philosophy Department, even if true, does not call into question
the appropriateness of the University’s remedial efforts. Given that Dr. Allaire resigned as
Estep’s doctoral advisor immediately after the alleged incident and that Estep does not contend
that she had any continued involvement with him in a classroom setting, the University’s decision
to investigate Estep’s initial allegation before taking any additional action with respect to Dr.
Allaire constituted appropriate remedial action under the specific circumstances of this case.
Estep also alleges in her complaint that the University retaliated against her for her role in
initiating investigations of Dr. Allaire and of the purportedly discriminatory practices in the
Philosophy Department. On appeal, Estep contends that she produced sufficient evidence of
retaliation by showing that certain faculty members made derogatory comments about her and
that a critique of a draft of her dissertation by her last doctoral advisor effectively discharged her
from the doctoral program.
To withstand the University’s motion for summary judgment on her retaliation claim,
Estep needed to produce evidence showing, at a minimum, that the retaliatory acts were
3
Estep also claims that the University discriminated against her by slowly investigating her
allegations of discrimination. The district court properly granted summary judgment against Estep
on this claim because the evidence shows that the delays were attributable to Estep’s efforts to
broaden the scope of the investigation.
3
analogous to “ultimate employment decisions.” See, e.g., Lowrey, 117 F.3d at 249 (recognizing a
claim for retaliation under Title IX when the plaintiff alleged that she was denied a promotion and
then demoted); cf. Mattern v. Eastman Kodak Co., 104 F.3d 702; 707 (5th Cir. 1997) (noting that
the acts of retaliation under Title VII must constitute “ultimate employment decisions.”).4 The
unfavorable comments made by Philosophy Department faculty members, however, are not
comparable to ultimate employment decisions. Cf. Mattern, 104 F.3d at 707 (holding that
hostility from fellow employees does not rise to the level of the required retaliation). Further,
although a constructive discharge from the doctoral program is tantamount to an ultimate
employment decision,5 Estep’s evidence does not adequately support her contention that she was
forced to withdraw from the doctoral program. To begin with, her doctoral advisor concluded his
critique of her dissertation draft by stating that he believed “it was possible for [her] to write an
acceptable dissertation.” Moreover, there is no evidence showing that the faculty members
making unfavorable comments about Estep were in a position to judge or otherwise exercise
significant influence over the evaluation of her dissertation. Finally, there is no evidence
suggesting that the critical comments made by Estep’s advisor were understood by those within
the Philosophy Department to foreshadow the futility of finishing her dissertation. We therefore
hold that a reasonable doctoral candidate would not feel compelled to abandon her doctoral
program under the circumstances demonstrated by Estep.
4
We assume arguendo that Estep’s evidence created genuine issues of fact regarding: 1) the
existence of a causal relationship between the retaliatory acts and her complaints of discrimination;
and 2) the University’s responsibility for the retaliatory acts of its professors.
5
Estep’s construct ive discharge claim is not pleaded in her complaint. Nevertheless, we
address this claim because it was considered by the district court.
4
AFFIRMED.
5