IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
No. 96-40592
(Summary Calender)
______________________________
YQUADEA DOVE AND
THERESA ROGERS,
Plaintiffs-Appellants,
versus
WESTWARD TRAILS MANOR, INC.
D/B/A WESTWARD TRAILS MANOR
Defendant-Appellee.
____________________________________________
Appeal From the United States District Court
for the Eastern District of Texas
(No. 95-111)
____________________________________________
February 19, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This is an appeal from the district court’s grant of summary
judgment in favor of Defendant-Appellee Westward Trails Manor,
Inc., d/b/a Westward Trails Manor (“Westward”), dismissing
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
Plaintiffs-Appellants Yquadea Dove’s and Teresa Rogers’ claims of
sexual harassment and retaliation under Title VII of the Civil
Rights Act of 19641 and race discrimination under both Title VII
and 42 U.S.C. § 1981. For the reasons that follow, the district
court’s grant of summary judgment is affirmed.
I
FACTS AND PROCEEDINGS
Westward operates a nursing home in Nacogdoches County, Texas.
Former plaintiff Camellia Ann Kelly worked as a housekeeper for
Westward. Plaintiffs Dove and Rogers worked as Certified Nurse’s
Aids for Westward. In March 1994, Westward also hired Vincent
Wilburn to work as a Certified Nurse’s Aid. He was not a
supervisor of any of the plaintiffs.
On June 18, 1994, Wilburn approached Kelley from behind while
she was cleaning one of the bathrooms in the nursing home, exposed
his genitals to her, and made lewd remarks. Kelly pushed Wilburn
out of the way and left the bathroom.
The next day on which Kelly was scheduled to work while
management was present was June 22, 1994. On that date —— her
first opportunity —— she reported the Wilburn incident to her
immediate supervisor, Elizabeth Duke, who advised Kelly to report
the incident to Wilburn’s supervisor, Carol Molandes. Neither
supervisor documented Kelly’s report, but Molandes told Kelly that
1
42 U.S.C. § 2000e et seq.
2
she would “take care of it.”
The next day (June 23rd), after admitting his role in the
bathroom incident, Wilburn was given a written “first warning.”2
That same day, however, Wilburn strolled down a hallway in the
presence of Kelly, holding a banana at his crotch, waving it like
a phallus, and laughing. Kelly promptly reported this incident to
Westward Administrator Joyce Lewis. At the meeting with Lewis,
Westward’s Director of Nursing, Vickie Randall, called Kelly a
“trouble maker” and told Kelly she would either have to work with
Wilburn or leave. Instead of taking any additional disciplinary
action against Wilburn, Lewis told Kelly that the most they could
do was transfer her to another assignment. Believing that Wilburn
would be allowed to continue harassing her and that her complaint
was not being taken seriously, Kelly resigned that day.
The next day, in the wake of Kelly’s resignation, Westward
supervisor Molandes asked plaintiffs Dove and Rogers whether
Wilburn had ever harassed them in a sexual manner. Both plaintiffs
separately reported that, indeed, Wilburn had made sexually
suggestive remarks to them. They also reported that he had
performed lewd “humping” gestures with elderly female patients who
he was responsible for lifting in the showers. Both plaintiffs
2
Plaintiffs claim there is a factual dispute as to whether
this first warning was in fact given. Wilburn testified in
deposition that Westward management talked with him about Kelly’s
complaint, but the actual warning notice that Westward introduced
as evidence of the warning does not indicate receipt or
acknowledgment by Wilburn.
3
acknowledge never having complained about Wilburn’s behavior prior
to the questioning initiated by Molandes on June 24, 1994.
Having ferreted out these additional reports of inappropriate
behavior from Dove and Rogers, Westward administrators Randall and
Molandes met with Wilburn and informed him of Dove’s and Rogers’
complaints. These administrators apparently did not immediately
take any further remedial action.3
Later that same day (June 24th), Wilburn waited for Rogers and
Dove to leave work (Dove was giving Rogers a ride home), chased
Dove’s vehicle with his, and reportedly tried to run Dove’s vehicle
off the road. Dove promptly reported this incident to Westward
Administrator Lewis who responded that, as it had occurred outside
of work, there was nothing she could do about it.
Four days later, on June 28, 1994, Wilburn told other Westward
employees that he wanted to burn down Dove’s and Rogers’ houses and
shoot both women and their children as they came running out of
their homes. Rogers reported these threats to Molandes at 11:45
that morning. After questioning (1) Wilburn, who denied making the
threats, and (2) two other employees, both of whom confirmed that
3
There appears to be a factual dispute as to whether Wilburn
was issued a second warning at this meeting or was merely informed
of the additional complaints. It is also possible that this
meeting was actually the meeting in which Wilburn received his
first warning. The factual record is, to say the least, somewhat
confusing regarding the precise chronology of warnings and meetings
between Wilburn and Westward management. This apparent dispute,
however, does not rise to the level of materiality even if it is
genuine.
4
Wilburn had made the threats, Molandes called Wilburn into his
office and effectively fired him at 12:15 that afternoon —— thirty
minutes after first hearing of the threats. Molandes immediately
informed Dove and Rogers that Wilburn had been fired or “was gone.”
Nevertheless, two days later —— June 30, 1994 —— both Dove and
Rogers quit their jobs at Westward. In explaining their
resignations, both plaintiffs assert that Molandes refused to talk
with them and treated them coolly at a staff meeting the next day;
they also state that other employees began calling them “trouble
makers,” the term first used by Ms. Randall in reference to Kelly.
In addition, Dove contends that her work assignment was temporarily
changed from working a hall to working only in the showers.
After filing timely discrimination charges with the Equal
Employment Opportunity Commission and receiving their right-to-sue
letters, plaintiffs Kelley, Dove, and Rogers filed the instant suit
against Westward in April 1995, asserting Title VII claims for
sexual harassment and retaliation, and claims for race
discrimination pursuant to Title VII and 42 U.S.C. § 1981. In late
January 1996, Kelly settled by accepting an offer of judgment from
Westward in the amount of $14,000. Soon thereafter Westward filed
a motion for summary judgment, asserting that (1) it was not liable
for Dove’s and Rogers’ Title VII sexual harassment and race
discrimination claims because Westward had taken prompt remedial
action, and (2) their race discrimination claims were precluded by
Westward’s remedial action, and any such claims arising under
5
section 1981 were specifically precluded as a matter of law by
Patterson v. McLean Credit Union.4
In May 1996, the district court not only granted Westward’s
motion for summary judgment on Dove’s and Rogers’ sexual harassment
and race discrimination claims but also dismissed sua sponte
plaintiffs’ retaliation claims, albeit the court did so without
providing any further analysis. Dove and Rogers timely filed their
Notice of Appeal and now specifically challenge the district
court’s grant of Westward’s summary judgment motion, dismissing
their sexual harassment and race discrimination claims, as well as
the court’s sua sponte grant of summary judgment dismissing their
retaliation claims.
II
ANALYSIS
A. Standard of Review
We review a grant of summary judgment de novo and apply the
same standards as used in the district court.5 Summary judgment is
therefore appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
4
491 U.S. 164, 178, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989).
As plaintiffs note and defendant acknowledges, however, the Civil
Rights Act of 1991 amended section 1981 to overrule Patterson. See
42 U.S.C. § 1981(b); Partee v. Metro. School Dist. of Washington
Tp., 954 F.2d 454, 457 (7th Cir. 1992).
5
LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 447 (5th Cir.
1996).
6
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.”6
A trial court may sua sponte grant a motion for summary
judgment as to any claim as long as the court provides the losing
party with ten days notice to come forward with all of his evidence
on that claim.7 When a district court grants a sua sponte summary
judgment without having provided the proper notice, however, the
summary judgment will only be affirmed if the lack of notice is
found to constitute harmless error.8 Summary judgment will be
considered “harmless” in such a circumstance “if the nonmovant has
no additional evidence or if all of the nonmovant’s additional
evidence is reviewed by the appellate court and none of the
evidence presents a genuine issue of material fact.”9 Put another
way, the party seeking to avoid a sua sponte summary judgment “must
present specific evidence that creates a genuine issue of material
fact, or at least identify how additional discovery would yield
6
Fed. R. Civ. P. 56(c).
7
Fed. R. Civ. P. 56(c); Celotex v. Catrett, 477 U.S. 317,
326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).
8
Nowlin v. Resolution Trust Corp., 33 F.3d 498, 504 (5th Cir.
1994); Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994).
9
Nowlin, 33 F.3d at 504 (quoting Leatherman, 28 F.3d at 1398)
(emphasis in original).
7
such an issue.”10
In the instant case, plaintiffs Dove and Rogers have proffered
the additional deposition evidence that they would have introduced
had they received notice that the district court was considering
summary judgment on their retaliation claims as well as their
sexual harassment and race discrimination claims. Accordingly, on
appeal we have considered this additional evidence in reviewing the
district court’s grant of summary judgement on plaintiffs’
retaliation claim.
B. Sexual Harassment Claims
To prevail on a claim of sexual harassment in the workplace,
a plaintiff must demonstrate each of the following elements:
(1) the employee belongs to a protected group;
(2) the employee was subject to unwelcome sexual harassment;
(3) the harassment was based upon sex;
(4) the harassment was so pervasive as to alter the
employee’s conditions of employment and create an abusive
working environment; and
(5) the employer knew or should have known of the harassment
and failed to take prompt remedial action.11
In this case Westward argued, and the district court agreed, that
10
Id.
11
Nash v. Electrospace System, Inc., 9 F.3d 401, 403 (5th Cir.
1993), citing Jones v. Flagship International, 793 F.2d 714, 719-20
(5th Cir. 1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93
L.Ed.2d 1001 (1987); see also Hirras v. Nat. R.R. Passenger Corp.,
95 F.3d 396, 398 (5th Cir. 1996).
8
Westward was entitled to summary judgment on plaintiffs’ sexual
harassment claims because Westward took prompt remedial action when
it learned of Wilburn’s inappropriate behavior towards Dove and
Rogers. As we have previously observed, the determination whether
an employer’s remedial response to discriminatory conduct is
sufficiently prompt and appropriately calibrated will “depend on
the particular facts of the case——the severity and persistence of
the harassment and the effectiveness of any initial remedial
steps.”12 In general, a remedial action sufficient to avoid
liability is one that is “‘reasonably calculated’ to end the
harassment.”13 Here, the district court focussed on two obvious
facts in evaluating Westward’s remedial actions: (1) Neither Dove
nor Rogers reported any sexual harassment by Wilburn before June
24, 1994, when Westward took the initiative and inquired; and
(2) Wilburn was fired on June 28, 1994, albeit for his intervening
threats of violence. The court then held that Westward’s
termination of Wilburn’s employment within four days of plaintiffs’
first complaint established, as a matter of law, that Westward took
adequate remedial action with sufficient dispatch to preclude
plaintiffs’ recovery.
Plaintiffs now argue that this conclusion is flawed for
12
Hirras, 95 F.3d at 399-400 (quoting Waltman v. International
Paper Co., 875 F.2d 468, 479 (5th Cir. 1989).
13
Garcia v. Elf Atochem North America, 28 F.3d 446, 451 (5th
Cir. 1994) (citng Jones, 793 F.2d at 719-20).
9
several reasons. First, they note that Wilburn’s sexual harassment
was severe, persistent, and openly practiced. Second, they observe
that Wilburn’s sexual harassment was first explicitly reported by
Kelly on June 22nd. Given these facts, they argue that Westward’s
first written warning to Wilburn on June 23rd (after Kelly’s
report) was too lenient and, further, that Westward’s apparent
failure to take any additional remedial action immediately
following Dove’s and Rogers’ reports confirms the inadequacy of
Westward’s response. Finally, they argue that Westward’s remedial
actions failed to encourage victims of harassment to come forward,14
but instead, by confronting Wilburn with new complaints of sexual
harassment and identifying the plaintiffs as the complainers,
exposed plaintiffs to Wilburn’s retaliatory actions and thereby
accomplished the opposite result.
As Westward notes in response, it is indisputable that from
the time Westward gave Wilburn his first warning and received
plaintiffs’ complaints until the time he was fired —— a period of
just four or five days —— Wilburn never again subjected Dove or
Rogers to any sexual harassment. To be sure, he appears to have
directed tortious or even criminal conduct towards the plaintiffs
“off campus”; but his harassing behavior of an explicitly sexual
nature never recurred. Consequently, we conclude that Westward’s
14
See Meritor Savings Bank, fsb v. Vinson, 477 U.S. 57, 73,
106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986) (indicating in dicta
that employer’s anti-discrimination policies should be “calculated
to encourage victims of harassment to come forward”).
10
remedial actions —— issuing a written warning; commencement of an
investigation; and the firing of Wilburn within minutes after
confirming his threats to injure the plaintiffs —— were, in the
circumstances of this case and seen in combination, not only
“‘reasonably calculated’ to end the harassment,”15 but were
effective in ending it finally and promptly.16 Indeed, the entire
episode —— from Wilburn’s initial harassment of Kelly until he was
fired —— lasted but ten days. As a result, plaintiffs cannot
establish a genuine issue of material fact as to the fifth and
final Nash element of their sexual harassment claim, and therefore
summary judgment on this claim was proper.
C. Retaliation Claims
The district court granted summary judgment on plaintiffs’
retaliation claim without providing us with the benefit of its
analysis except for stating conclusionarily that “the summary
judgment evidence is totally lacking.” Although we agree with that
conclusion, we shall briefly explain our reasoning based upon all
of the summary judgment evidence, including the additional evidence
proffered through the plaintiffs’ Motion to Modify the Record
15
Garcia, 28 F.3d 451.
16
See Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309
(5th Cir. 1987) (employer’s assurance, offered less than twelve
hours after initial complaint was made, that complaining employee
would not have to work with harassing co-employee after current
business trip ended constituted prompt remedial action sufficient
to preclude plaintiff’s recovery)
11
pursuant to Rule 10 of the Federal Rules of Appellate Procedure.17
To state an actionable claim for retaliation under Title VII,
a plaintiff must establish that (1) he engaged in a statutorily
protected activity, (2) he suffered an adverse employment action
following the protected activity, and (3) a causal connection
existed between the protected activity and the adverse action.18
Dove and Rogers plausibly contend that by reporting Wilburn’s
offensive sexual conduct on June 24 they opposed an unlawful
employment practice and thus satisfied the protected activity
requirement of their retaliation claim.
To establish the second element of their retaliation claim,
however, plaintiffs can only point to Wilburn’s actions —— his off-
premises, after hours, attempted vehicular assault and his open
threats, communicated to third parties, to kill plaintiffs and
their families —— as evidence of their having experienced an
adverse employment action. Unfortunately for plaintiffs, Wilburn’s
admittedly reprehensible actions simply cannot be attributed to his
17
The additional evidence, which was not included in
plaintiffs’ response to Westward’s motion for summary judgment but
which we have considered on appeal, consists of excerpts of two
depositions. In one, Joyce Lewis acknowledged that the purported
vehicular assault was reported to her but that she told the
plaintiffs that she could take no action as the incident had
occurred outside the scope of their and Wilburn’s employment; and
in the other, plaintiff Dove said that she had resigned not just
because of Wilburn’s retaliatory actions but also because her co-
workers and supervisors sneered at her and would not speak to her,
and because she was temporarily reassigned to work only in the
showers.
18
Nowlin, 33 F.3d at 507.
12
employer, Westward. To the contrary, Wilburn acted, albeit
tortiously and perhaps even criminally, on his own initiative —— a
classic “lark” in no way attributable to the scope of his
employment. Of course, the possibility that Wilburn —— merely a
co-worker —— might have been motivated by a desire to retaliate
against Dove and Rogers for their actions against him personally
does not mean that Westward intended to or in fact did invite this
behavior and thereby subject the plaintiffs to an adverse
employment action. Instead, the evidence shows that Westward did
not fire the plaintiffs, demote them, dock their pay, substantially
change their work assignments, or take or refrain from taking any
other action that could reasonably be characterized as an adverse
employment action. Indeed, all it did was to initiate an
appropriate and timely investigation in response to plaintiffs’
allegations and timely confront Wilburn with the fact that two more
co-employees had complained of inappropriate sexually-tinged
behavior. In short, Wilburn took reprehensible personal actions
against the plaintiffs; Westward took no adverse employment action
against them.
As plaintiffs have not shown the existence of a genuine issue
of material fact as to this second element of their retaliation
claims, summary judgment is appropriate on these claims as well.
D. Race Discrimination Claims
Finally, plaintiffs’ allegations of racial discrimination,
13
whether founded on Title VII or § 1981, are almost entirely
premised on the same allegations as are their sexual harassment and
retaliation claims. In short, they argue that Westward tolerated
Wilburn’s sexual harassment of them because they are black. As we
have found that there was no actionable sexual harassment given
Westward’s prompt remedial action in response to Wilburn’s conduct,
plaintiffs’ claims of racial discrimination simply cannot stand.
We add, however, that the minor fact that Westward’s management,
albeit comprised entirely of whites, fired Wilburn, a black, after
two employees, the first black and the second white, confirmed his
threats against the plaintiffs, would have been too slender a reed
to support a race discrimination claim even if there had been
actionable sexual harassment. As Westward noted, it sought
confirmation from its employees in rapid succession after Rogers
reported Wilburn’s threats, and called in witnesses as soon as they
were mentioned by plaintiffs or others. In other words, not even
a glimmer of racial discrimination can be found in Westward’s swift
response to Dove’s and Rogers’ complaints. Accordingly,
plaintiffs’ claims of racial discrimination, whether founded on
Title VII or § 1981, were properly dismissed on summary judgment.
III
CONCLUSION
For the reasons set forth above, we hold that plaintiffs have
failed to submit evidence demonstrating genuine issues of material
14
fact as to their sexual harassment, retaliation, or race
discrimination claims. Accordingly, the district court’s grant of
summary judgment dismissing plaintiffs’ claims in their entirety is
affirmed and their Rule 10(e) motion is denied as moot, given our
consideration of their proffered additional evidence.
Summary Judgment AFFIRMED; Motion DENIED as moot.
15