UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-40993
Summary Calendar
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Priscilla Leal,
Plaintiff-Appellant,
versus
City of Corpus Christi,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(C-95-CV-243)
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July 2, 1997
Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
This appeal challenges the district court’s grant of a motion
for summary judgment in favor of the defendant and the subsequent
dismissal of the plaintiff’s employment discrimination claims. For
the reasons that follow, we affirm the judgment of the district
*
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opinion should not be published and is not precedent except under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.
court.
I. Standard of Review
This court reviews the district court’s grant of summary
judgment de novo. See, e.g., Ray v. Tandem Computers, Inc., 63
F.3d 429, 433 (5th Cir. 1995). “Summary judgment is proper when no
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. In determining whether summary
judgment was proper, all fact questions are viewed in the light
most favorable to the non-movant.” Id. (quoting Moore v. Eli Lilly
Co., 990 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 976, 114
S. Ct. 467, 126 L.Ed.2d 419 (1993) (citation omitted)).
II. Background
The plaintiff, Priscilla Leal, has been employed by the
defendant, the City of Corpus Christi, for over fifteen years as
the Senior Secretary for the city’s Public Utilities Commercial
Office. In March 1993, the defendant advertised that it was
accepting applications for a vacancy in its Customer Relations
Manager position. Leal, who was 46 years old at the time, applied
for the promotion and, although she was interviewed for the
position, was not chosen to fill the vacancy. Instead, Barbara
Sudhoff, a 39-year-old, was selected for the position.
Shortly thereafter, in May of 1993, the city advertised that
2
it was accepting applications for the position of Meter Reading
Supervisor. Leal applied for that position as well, but was passed
over in favor of Alejandro Puente, a 36-year old male. Based on
these decisions, Leal filed a charge of age and sex discrimination
with the Equal Employment Opportunity Commission (“EEOC”).2
Meanwhile, in March 1992, Victor Salas was promoted to the
position of Utilities Business Office Manager. Salas was thereby
given direct supervisory authority over Leal. Leal contends that
over the course of the next several years, Salas subjected her to
a hostile working environment. In support of this allegation, Leal
points to a number of incidents in which Salas allegedly treated
her and other employees in an unprofessional, intimidating, or
otherwise threatening manner.
Salas’s alleged treatment of Leal culminated in a letter to
the City Manager in which Leal expressed fear for her safety and
claimed that Salas was “continuously following [her], watching
[her] every step and move[, and] stalking and harassing [her].” In
response to this letter, Leal was placed on paid administrative
leave pending an investigation of her concerns. Although the
results of the city’s investigation are unclear, it is undisputed
that Leal was offered a transfer, which she subsequently declined.
2
It is unclear from the record when Leal’s EEOC charge was filed.
She contends in an affidavit, however, that she had a court
appearance on the matter in October 1995. For purposes of summary
judgment, we will assume that Leal’s charge was filed sometime in
early- to mid-1995 and that none of her claims are time-barred.
3
On May 31, 1995, Leal filed a complaint in federal district
court alleging age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C. §
621 et seq. Leal later filed amended complaints in which she
raised claims of sex discrimination, hostile work environment
sexual harassment, and retaliation pursuant to Title VII of the
Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §
2000(e) et seq.
In August 1996, the district court granted the city’s motion
for summary judgment with respect to all of Leal’s claims.
Accordingly, the district court dismissed the case and entered
final judgment in favor of the city. Leal timely filed her notice
of appeal and this appeal followed.
III. Discussion
This court has recognized that an applicant who is passed over
for a position can prove that the challenged decision was pretext
for discrimination by establishing that she is “clearly better
qualified for the position in question.” Odom v. Frank, 3 F.3d
839, 845 (5th Cir. 1993). We explained, however, that “unless
disparities in curricula vitae are so apparent as virtually to jump
off the page and slap us in the face, we judges should be reluctant
to substitute our views for those of the individuals charged with
the evaluation duty by virtue of their own years of experience and
expertise in the field in question.” Id. at 847. After carefully
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examining the record in this case, we cannot find that Leal’s
credentials were “so obviously and substantially superior” to the
successful applicants that Leal was “clearly better qualified” for
the positions at issue. See id. Accordingly, we conclude that
summary judgment was properly granted with respect to Leal’s claims
of age and sex discrimination.
To maintain a claim of sexual harassment based on a hostile
working environment, a plaintiff must show, among other things,
that she was subject to unwelcome sexual harassment based on sex.
Jones v. Flagship Int’l, 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). Viewing the evidence in the light most favorable to Leal,
the record in this case establishes only that Salas utilized an
unduly intimidating management style and did not treat the
employees under his supervision with sufficient respect. Leal’s
evidence is peppered with references to Salas’s poor treatment of
many of his subordinates -- without reference to their sex.3 This
court has recognized, however, that “Title VII does not exist to
punish poor management skills; rather, it exists to eliminate
certain types of bias in the workplace.” Ray, 63 F.3d at 435 n.19.
Because Leal has presented no evidence that Salas’s alleged
treatment of her was based on sex, summary judgment was properly
3
Although Leal claims that “most” of the employees who were
mistreated by Salas were over the age of forty, she does not assert
a claim of hostile work environment harassment based on age.
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rendered with respect to Leal’s claim of hostile work environment
sexual harassment. See DeAngelis v. El Paso Mun. Police Officers
Ass’n, 51 F.3d 591, 593 (5th Cir.), cert. denied, — U.S. —, 116 S.
Ct. 473, 133 L.Ed.2d 403 (1995) (emphasizing that the purpose of a
claim for hostile work environment sexual harassment is “to level
the playing field for women who work by preventing others from
impairing their ability to compete on an equal basis with men”).
Finally, Leal contends that Salas subjected her to a hostile
work environment in retaliation for filing a charge of
discrimination with the EEOC. Even if such a claim is cognizable
in this circuit after our decision in Mattern v. Eastman Kodak, 104
F.3d 702, 705-10 (5th Cir. 1997), Leal has not alleged that the
city failed to take prompt remedial action upon learning of the
harassment. See Jones, 793 F.2d at 719-20 (“In order to establish
a claim against an employer for a hostile work environment, the
plaintiff must show ... that the employer knew or should have known
of the harassment in question and failed to take prompt remedial
action”); Mattern, 104 F.3d at 712 (Dennis, J., dissenting)
(arguing that a claim of hostile work environment retaliatory
harassment is actionable when a plaintiff proves, among other
things, that “... the employer knew or should have known of the
harassment and failed to take reasonably calculated steps to end
the abuse ...”). In fact, it is undisputed that two days after
receiving a complaint, the city placed Leal on paid administrative
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leave pending its investigation. Moreover, the city later offered
to transfer Leal to another department. In the absence of
competent evidence that this response was not adequate, Leal cannot
raise a genuine issue of material fact sufficient to withstand
summary judgment.4 See Hirras v. National Ry. Passenger Corp., 95
F.3d 396, 400 (5th Cir. 1996) (noting that “[o]n several occasions,
we have held that an employer’s response to discriminatory conduct
constituted prompt remedial action as a matter of law” (citations
omitted)).
IV. Conclusion
Leal failed to establish a genuine issue of material fact with
respect to any of her claims of discrimination. Therefore, the
district court properly granted summary judgment in favor of the
city with respect to each of Leal’s claims. Accordingly, the
judgment of the district court is AFFIRMED.
4
As part of her claim of hostile work environment retaliatory
harassment, Leal alleges that Salas placed a letter of reprimand in
her file that contained false information. Upon receiving Leal’s
written response to the letter of reprimand, the city conducted an
investigation and deleted all erroneous information from the
letter. Leal does not contend that the city’s handling of this
incident was in any way deficient.
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