Derouen v. Carquest Auto Parts

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30369
Summary Calendar
PATRICIA DEROUEN,
Plaintiff-Appellant,
versus
CARQUEST AUTO PARTS, INC.; GENERAL PARTS, INC. OF LOUISIANA;
GENERAL PARTS, INC.; and CARQUEST AUTO PARTS OF NEW IBERIA, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-CV-396
September 24, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Patricia Derouen appeals from the grant of summary judgment in
favor of the defendants on her hostile work environment and
constructive discharge claims. We review a grant of summary
judgment de novo, applying the same standard as the district
court.1 We may affirm a summary judgment on any ground raised by
*
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this opinion should not be published and is not precedent except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
Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 257
(5th Cir. 2001).
the movant below and supported by the record, even if it is not the
ground relied on by the district court.2
Derouen has failed to raise a genuine issue of material fact
to support her claim of hostile work environment resulting from
sexual harassment. She claims that a co-worker attempted to grab
her breast and later put his hand on and rubbed her thigh and that
a customer twice made sexually threatening remarks to her.3 She
alleges that, because her supervisors did not respond to her
complaints about these incidents, she thereafter resigned to avoid
being further subjected to such behavior. These claims cannot be
meaningfully distinguished from those we found insufficient to
survive summary judgment in Shepherd v. Comptroller of Public
Accounts.4 As in Shepherd, Derouen's allegations do not rise to
the level necessary, as a matter of law, to support a hostile work
environment claim under this circuit’s well-settled law: harassing
2
Id. at 257-58.
3
Because we find that the sum of these allegations does not
rise to the level necessary to sustain a claim of hostile work
environment, we, like the district court, assume without deciding
that the first allegation regarding Derouen's co-worker's
attempting to touch her breast was properly before the district
court, notwithstanding the defendants' argument that this
allegation was not timely raised before the EEOC.
4
168 F.3d 871, 874-75 (5th Cir.), cert. denied, 528 U.S. 963
(1999).
2
conduct that affects a "term, condition, or privilege" of
employment.5
Derouen has also failed to raise a genuine issue of material
fact on her constructive discharge claim. Constructive discharge
requires evidence that the plaintiff’s working conditions were so
intolerable that a reasonable employee would feel compelled to
resign.6 To prove constructive discharge, the evidence must
demonstrate a greater severity or pervasiveness of harassment than
the minimum required to prove a hostile working environment claim.7
Because her constructive discharge claim relies on the same
evidence as her hostile work environment claim, Derouen cannot
survive summary judgment on this claim, either. Derouen’s claim
that her decision to resign was compelled by management’s failure
to act on her complaints does not increase the severity or
pervasiveness of the harassment to which she was allegedly
subjected.
The Ellerth/Faragher roadmap applies to supervisor sexual
harassment, not the co-worker and customer sexual harassment that
Derouen alleges.8 The framework for analyzing claims of sexual
5
Id. at 873.
6
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.
2001).
7
Id.
8
See Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000);
Casiano, 213 F.3d at 283; see also Butler v. Ysleta Indep. Sch.
3
harassment by co-workers remains, even after Ellerth and Faragher,
the principles governing hostile work environment claims
articulated in Shepherd.9 Under these principles, the district
court did not err in granting summary judgment to the defendants.
AFFIRMED.
Dist., 161 F.3d 263, 268-69 (5th Cir. 1998).
9
168 F.3d at 873-74; see also Sharp v. City of Houston, 164
F.3d 923, 929 (5th Cir. 1999) (stating that Ellerth and Faragher
did not alter the negligence standard which governs employer
liability for co-worker harassment).
4