IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40272
Summary Calendar
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VICKI J. MEDDERS,
Plaintiff-Appellant
Cross-Appellee,
VERSUS
AUSTIN COLLEGE,
Defendant-Appellee
Cross-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
(4:94-CV-307)
_________________________
November 7, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Vicki J. Medders appeals a summary judgment in favor of Austin
College on various claims arising out of her alleged sexual
harassment by a college employee. Finding no error, we affirm.
*
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should not be published and is not precedent except under the limited circumstances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.
2
I.
Medders, an employee of the physical plant at the college,
alleges that she was sexually harassed by Audis Murphy, another
employee of the physical plant. According to Medders, she notified
Kay Garner, a co-worker, on approximately November 30, 1992, that
she had refused Murphy’s request that she sleep with him. Medders
similarly told Garner that Murphy had threatened to rape her.
Medders refused to pursue the matter further at that time,
believing that Murphy’s behavior was a passing event.
In December 1992 or January 1993, Medders reiterated her
complaints to Garner and also complained to Harry Goodman, her
immediate supervisor in the physical plant, that a male employee in
the physical plant had threatened to rape her. Goodman encouraged
Medders to pursue her complaint with the college's Sex Harassment
Committee, but Medders refused to identify Murphy as the perpetra-
tor and asserted that she would handle the matter herself. Finally
in February 1992, after Murphy allegedly threatened to rape Medders
and kill her family, Medders complained again to Garner, Goodman,
and Karen Nelson, director of the Sex Harassment Committee,
identifying Murphy as the perpetrator.
Medders was placed on paid leave pending the college's
investigation of the incident, and Murphy also was instructed to
take leave of his job and remain away from Medders until the matter
could be resolved. Two days later, after college officials had
investigated the complaints and interviewed Medders and Murphy (at
3
which time Murphy denied the accusations and insisted that he and
Medders had had a consensual affair several years prior), they
encouraged Murphy to take early retirement and instructed him to
stay away from Medders. Murphy resigned the following day.
Upon her return to work, Medders was offered, and she
accepted, free harassment advice and counseling with a faculty
member at the college, which counseling continued for six weeks.
When Medders elected not to enroll in the major medical insurance
offered by the college to all employees, Medders continued the
counseling at her own expense.
Medders left the college's employ in March 19942 after filing
the instant action alleging causes of action under title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., the
Americans with Disabilities Act, 42 U.S.C. § 12112, et seq., and
state law claims of intentional infliction of emotional distress
and retaliatory discharge. The district court granted the
college's motion for summary judgment on all claims.
II.
We review a grant of summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
2
The parties contest whether she was fired or abandoned her job.
4
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
A.
Medders first argues that the district court erred in finding
that the college took prompt remedial action at the time it knew or
should have known about Murphy’s sexual harassment. Whether the
remedial action was prompt requires an investigation of when the
college received actual or constructive notice of the harassment.
To establish an actionable claim of sexual harassment in the
work place, a plaintiff must demonstrate (1) that she belongs to a
protected class; (2) that she was subject to unwelcome harassment;
(3) that the harassment was based upon sex; (4) that the harassment
affected a “term, condition or privilege of employment”; and
(5) that the employer either knew or should have known of the
harassment and failed to take prompt remedial action. See Jones v.
Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied,
479 U.S. 1065 (1987). Because the college conceded the first four
elements for the purpose of its summary judgment motion, we
consider only the fifth.
Medders asserts first that constructive notice attached on
November 30, 1992, the date upon which she first notified Kay
Garner, a co-worker, that Murphy had approached her about having
5
sex. Because Garner had served on the Sex Harassment Committee,
which service had ended in 1992, Medders contends that the
college's “failure to disseminate the information related to
resignations and new appointments” to the committee caused her to
rely to her detriment upon Garner’s apparent authority to act with
respect to such matters. “A prerequisite to a proper finding of
apparent authority is evidence of conduct by the principal relied
upon by the party asserting the estoppel defense which would lead
a reasonably prudent person to believe an agent had authority to so
act.” Ames v. Great Southern Bank, 672 S.W.2d 447, 450 (Tex. 1984)
(citation omitted).
The college's failure to disseminate information about the
committee resignation, on its own, is not sufficient conduct by the
principal to support apparent authority. Furthermore, Medders’s
reliance on such conduct is not reasonable; Medders easily could
have asked Garner whether she was still a member of the committee.
Because Garner had no apparent authority to bind the college, she
could not have imputed constructive notice of the harassment to the
college as of her November 30, 1992, conversation with Medders.
Medders next argues that Austin had constructive notice of the
harassment as of her December 1992 conversation with Harry Goodman,
a supervisor, in which Medders told Goodman that a male employee
had threatened to rape her. It is undisputed that on this occasion
Medders refused to identify Murphy as the male employee and that
6
Goodman encouraged Medders to contact the Sex Harassment Committee
to pursue further her allegations. Medders refused Goodman’s
advice, however, saying that she would handle the situation
herself.
Notwithstanding this interchange, Medders contends that,
because of the severe nature of the threats involved, Austin had a
duty independently to obtain the identity of the harasser and that
this duty estops Austin from denying constructive notice. Citing
Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1422
(7th Cir. 1986), Medders notes correctly that “an employer who has
reason to know that one of his employees is being harassed . . .
and does nothing about it is blameworthy.”
Medders neglects the remainder of the paragraph, however, in
which the court explains that such “reason to know” arises only
where the harassment is “so egregious, numerous and concentrated as
to add up to a campaign of harassment.” Id. Medders’s single
complaint to Goodman, coupled with her refusal to identify Murphy
as the perpetrator and her rebuffing of Goodman’s suggestion that
she pursue the matter further with the committee, does not rise to
an actionable level. Goodman did not turn a deaf ear to Medders’s
allegations, but rather responded appropriately under the circum-
stances.
We agree, therefore, with the district court that the college
lacked constructive notice of Murphy’s harassment of Medders until
7
February 1993, at which time Medders told Goodman and Murphy, among
others, that Murphy himself had threatened to rape her and kill her
family. It is undisputed that this complaint was sufficient to
provide the college with notice, and it is from this date that we
now measure the promptness and effectiveness of the college's
remedial action.
Once an employer has notice of harassment, it must take prompt
remedial action in response. See Jones, 793 F.2d at 719-20.
Remedial action must be “reasonably calculated” to end the
harassment, see id., including appropriate discipline directed at
the offending party. See Waltman v. International Paper Co., 875
F.2d 468, 479 (5th Cir. 1989). What is appropriate remedial action
depends upon the facts and circumstances of each individual
caseSS”the severity and persistence of the harassment, and the
effectiveness of the initial remedial steps.” See id.
It is undisputed that immediately upon hearing Medders’s
allegations, Goodman excused Medders to go home on leave with pay
and excused Murphy with instructions not to speak with Medders nor
to return to work until instructed. Goodman then contacted the
Vice President and Director of Personnel to set up a meeting with
those parties and Medders, subsequent to Medders’s meeting with the
Sex Harassment Coordinator and Faculty Advisor. Medders was given
an opportunity to reiterate her allegations and then returned home
on paid leave.
8
Murphy met with the same group twice in the subsequent two
days, during which meetings he vehemently denied the accusations
and reported that he and Medders had had a consensual affair years
earlier. Murphy was advised to resign with his retirement benefits
and instructed not to appear at the physical plant (Medders’s work
place), save for the benefits administration office. Murphy
acquiesced, and Medders remained on paid leave until March 3, 1993.
Medders objects to the adequacy of the college's remedial
action because “[t]here is a genuine issue of material fact as to
whether simply allowing Murphy to retire with full benefits while
refusing to make accommodations to the Plaintiff constituted prompt
and appropriate remedial action.” Whether Medders likes or
dislikes Murphy’s retirement package is inapposite to an evaluation
of the adequacy of the remedial action. We have required only that
employers take steps “'reasonably calculated' to halt the harass-
ment,” see id., and removing Murphy from the workplace and
enjoining his contact with her, is in fact so reasonably calculated
to end the harassment.3
Furthermore, the college provided Medders, upon her return to
work, six weeks worth of free harassment advice and counseling with
a faculty member on the committee. The free counseling was
3
We also disagree with Medders that the fact that she was required to use
her sick leave and vacation time for counseling juxtaposed with the college's
grant of retirement benefits to Murphy “demonstrates a conscious, deliberate
pattern of gender discrimination and an affirmance of Murphy’s wrongful conduct.”
9
terminated only because Medders later elected not to enroll in the
major medical insurance offered to all employees.4 In light of the
prompt and effective remedial action, “[t]he uncontested evidence
demonstrates a model of prompt, sensitive employer handling of
these very traumatic issues.” Nash v. Electrospace Sys., Inc.,
9 F.3d 401, 404 (5th Cir. 1993) (per curiam).
B.
Medders next alleges that the college's decision to terminate5
her employment in March 1994 was motivated by her filing workers’
compensation and EEOC claims and thus was impermissibly retalia-
tory. To establish a retaliation claim, a plaintiff must prove
(1) that she engaged in activity protected by title VII; (2) that
an adverse employment action occurred; and (3) that a causal
connection existed between the participation in the protected
activity and the adverse employment action. See Shirley v.
Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992). The
employee bears the burden of establishing the causal link, which
may be shown by circumstantial evidence. See Palmer v. Miller
Brewing Co., 852 S.W.2d 57, 61 (Tex. App.SSFort Worth 1993, writ
denied). The employer may then rebut the allegations by showing a
legitimate reason for the discharge. Id.
4
Medders continued with counseling at her own expense.
5
Again, we note that the parties contest whether Medders was fired or
abandoned her job.
10
Without deciding whether Medders has met her burden, we note
that the college has proffered a non-discriminatory reason for its
terminationSSMedders’s unsatisfactory work performance, tardiness,
and absenteeism, as documented in Goodman’s letter to Medders of
March 9, 1994. See Texas Division-Tranter, Inc. v. Carrozza, 876
S.W.2d 312, 314 (Tex. 1994) (holding that employer is entitled to
summary judgment when it proffers a legitimate, non-discriminatory
reason for termination and the employee fails to controvert such
evidence). Among the deficiencies Goodman notes in his letter are
(1) over fifteen dates from December to February during which
Medders either left early, arrived late, or failed to appear for
work; (2) Medders’s failure to correct problems in job performance
that had been brought to her attention in two previous meeting with
Goodman in January and February; (3) Medders’s failure to inform
Goodman in advance of her leaving for doctors’ appointments; and
(4) her failure to concentrate on her work product.
Medders objects to the college's proffered rationale,
suggesting that its contention of diminished work performance is
merely a pretext to an unlawful discharge. Medders offers no
contradictory evidence, however, other than her own affidavit
denying Goodman’s charges and the affidavit of a student co-
worker.6 The co-worker’s affidavit does not even deny each of
6
Medders mistakenly cites Palmer’s discussion of the use of circumstantial
evidence to prove a causal link in support of her pretext argument. As Palmer
notes, however, such evidence is not apposite to challenge pretext, but only to
(continued...)
11
Goodman’s charges, but merely attempts to establish that Goodman
“seemed to have a negative, sexist, chauvinistic attitude toward
women. I felt he talked down to women, was condescending and
showed no respect in general.” Such conclusory, subjective beliefs
are not competent summary judgment evidence and are insufficient to
call into question the proffered rationale for Medders’s termina-
tion. See Carrozza, 876 S.W.2d at 314.
C.
Medders next challenges the dismissal of her intentional
infliction of emotional distress claim, arguing that the district
court failed to inquire whether the college's conduct in response
to her complaints of harassment (not Murphy’s conduct itself for
which the court properly found that the college could not be held
liable) is actionable. To establish intentional infliction of
6
(...continued)
establish a priori that a causal link exists, which then shifts the burden to the
employer to proffer a nondiscriminatory reason for discharge. See 852 S.W.2d at
61-62.
Medders also offers, as evidence of the causal connection between her
termination and the protected activity, Goodman’s letter to her of August 1993
explaining the procedures for filing a workers’ compensation claim in which
Goodman also notes that, once a claim is filed with the carrier, the college may
lose control over the her files for the purposes of maintaining confidentiality.
Although we have noted in dicta that a manager’s statement that he could not
investigate a harassment claim without revealing the victim’s identity coupled
with others managers’ suggestions that an investigation would be detrimental to
the victim, evinced an attempt to dissuade the victim from seeking an
investigation, see Waltman, 875 F.2d at 480, such is not the case here. Having
reviewed Goodman’s letter in the context of the other evidence proffered by
Medders, we disagree that “[c]learly Goodman knew of the fear that Plaintiff had
of Murphy . . . and utilized this knowledge in an attempt to intimidate her from
filing her Worker’s Compensation Claim.”
12
emotional distress, a plaintiff must show (1) that the defendant
acted intentionally or recklessly; (2) that the defendant’s conduct
was extreme and outrageous; (3) that the defendant’s conduct caused
the plaintiff emotional distress; and (4) that the emotional
distress suffered was severe. See Twyman v. Twyman, 855 S.W.2d
619, 621 (Tex. 1993).
We simply disagree that the litany of complaints Medders
lodges in the wake of her harassment complaint rises to the level
of extreme and outrageous conduct that it “utterly intolerable in
a civilized community.” Dean v. Ford Motor Credit Co., 885 F.2d
300, 306 (5th Cir. 1989).7 As discussed above, the college handled
an unfortunate situation with adequate and prompt remedial action
and attempted to accommodate Medders’s fragile emotional state and
multitude of absences from work to the best of its abilities.
Medders’s complaints about the retirement pension the college
provided to Murphy, about the college's failure to re-institute
sick days and vacation days that Medders took during her recovery
period, and about the fact that she chose not to accept the
employer-provided medical insurance and thus was forced to pay out-
of-pocket for her psychiatric treatment do not convince us
otherwise.
7
We disagree with Medders that Dean stands for the proposition that a
litany of complaints creates a cognizable claim of intentional infliction.
Because we noted in Dean that the “check incidents” alone were sufficient to
support the claim, we did not consider the rest of the plaintiff’s complaints.
See 885 F.2d at 307.
13
D.
Medders challenges the dismissal of her claim under the
Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12112, et
seq. In order to state a prima facie case of employment discrimi-
nation under the ADA, a plaintiff must show that (1) she has a
disability; (2) she was a qualified individual with a disability;
and (3) the defendant’s termination of her employment constituted
unlawful discrimination. See Tyndall v. National Educ. Ctrs., Inc.
of California, 31 F.3d 209, 212-13 (4th Cir. 1994). A disability
is a physical or mental impairment that “substantially limits”8 one
or more “major life activities.” See Dutcher v. Ingalls Shipbuild-
ing, 53 F.3d 723, 726 (5th Cir. 1995). A substantial work
limitation is one that restricts the claimant from performing “a
class of jobs or a broad range of jobs in various classes . . . .
The inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of
working.” 29 C.F.R. § 1630.2(j)(3)(i).
Medders claims that the emotional distress stemming from
Murphy’s harassment substantially limits her ability to engage in
the major life activity of “working in a broad class of jobs
8
“Substantially limit” means (1) unable to perform a major life activity
that the average person in the general population can perform; or
(2) significantly restricted as to the condition, manner, or duration under which
an individual can perform a particular major life activity as compared to the
condition, manner, or duration under which the average person in the general
population can perform the same major life activity. See 29 C.F.R.
§ 1630.2(j)(1)(i), (ii).
14
involving the type of stress found in work environments where there
are predominately middle-aged to older males, particularly when
they are in positions of authority.”9 Because we do not believe
that Medders has established a compensable “disability” under the
ADA, we affirm on different grounds.10 “Jobs involving the stress
found in work environments where there are predominately middle-
aged to older males” is not a sufficient definition of a class of
jobs or broad range of jobs in which Medders’s disability prevents
her from working.
The proper question under the ADA is whether Medders’s
emotional distress substantially limits her ability to perform her
job as a secretary; finding no such evidence, we affirm. See,
e.g., Bridges v. City of Bossier, 92 F.3d 329, 335-36 (5th Cir.
1995) (discussing more fully the requirements for demonstrating a
substantial limitation on working). The ADA was not intended to
permit plaintiffs to bootstrap specious title VII or intentional
infliction of emotional distress claims into compensable ADA claims
by carefully inventing broad categories of jobs that they claim
they are no longer able to perform.
9
Medders also claims that her impairment substantially limits her ability
to engage in the major life activity of “social functioning.” We are at a loss
to find in the ADA even a modicum of support for such a major life activity.
10
We may affirm on any legal grounds apparent from the record. See
Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992), cert. denied, 507 U.S.
972 (1993).
15
II.
Medders finally asserts that the district court erred in
failing to grant her motion to compel documents that the college
asserted as privileged. Medders argues on appeal that the
documents should not have been withheld as privileged, but the
district court denied Medders’s motion on alternate groundsSSthat
Medders waited nine months before filing her motion and eventually
did so after the docket control order’s deadline for completion of
discovery. Because Medders offered no justification for the delay,
the court denied her motion. We do not believe that the district
court abused its discretion to handle such pre-trial discovery
matters. See Robinson v. State Farm Fire & Cas. Co., 13 F.3d 160,
164 (5th Cir. 1994).
III.
The college cross-appeals for an award of attorneys’ fees,
contending that Medders’s title VII claims are frivolous, unreason-
able, or without foundation. See Christianburg Garment Co. v.
Equal Empl. Opportunity Comm., 434 U.S. 412, 421 (1978). The
district court refused without comment to award fees, and we do not
find any abuse of discretion. See Hadley v. VAM P T S, 44 F.3d
372, 375 (5th Cir. 1995). We similarly reject the college's
suggestion to remand for specific findings with respect to the
attorneys’ fees. See White v. South Park Indep. Sch. Dist., 693
16
F.2d 1163 (5th Cir. 1982).
AFFIRMED.
17