IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-10989
Summary Calendar
____________________
CARLA WEIDINGER,
Plaintiff-Appellant,
v.
FLOORING SERVICES INC; HARRY CROSBY, Individually for State
Law Claims,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:97-CV-782-R)
_________________________________________________________________
April 2, 1999
Before KING, Chief Judge, EMILIO M. GARZA and DeMOSS, Circuit
Judges.
PER CURIAM:*
Plaintiff-appellant Carla Weidinger appeals the district
court’s grant of summary judgment in favor of defendants-
appellees Flooring Services, Inc. and Harry Crosby on her Title
VII retaliation and constructive discharge claims. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1992, plaintiff-appellant Carla Weidinger was hired 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this opinion should not be published and is not precedent except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.
defendant-appellee Flooring Services, Inc. (Flooring), a floor
covering company, as a secretary/receptionist. Her job duties
included answering the telephones and performing word processing
for Flooring’s president and sole shareholder, defendant-appellee
Harry Crosby, as well as vice-president Jack Easter, controller
Hoshang Patel, and Flooring’s salespeople. In June 1994,
Weidinger began working only Monday through Wednesday of each
week. At the time of the events giving rise to her lawsuit
against Flooring and Crosby, she worked at a desk just outside
Crosby’s office and reported directly to him.
On March 14, 1995, Weidinger and a number of Flooring
employees, including Crosby, met at a restaurant for after-work
drinks. Crosby gave Weidinger a ride home from the gathering.
During this trip, he rubbed her leg, held her hand, tried to kiss
her, and told her that he loved her “as a woman.” Weidinger
asked Crosby to take her home immediately, and he complied. Upon
arriving at her residence, Weidinger called Stephanie Robinson,
Flooring’s credit manager and one of its two sexual harassment
officers, and related her experience with Crosby. Weidinger made
clear to Robinson that she did not wish to resign, but because
Crosby had informed her that she could take the next day off and
she was not scheduled to work on the next two days, Thursday and
Friday, she did not return to Flooring until Monday, March 20,
1995. At that time, she asserts, several Flooring employees
avoided her, and Crosby and Easter rarely spoke to her or
assigned her work. Two days later, when Patel, Flooring’s other
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sexual harassment officer, returned from a trip abroad, he and
Robinson met with Weidinger to discuss her complaint and the
company’s investigation; both asked Weidinger to contact them if
she thought of anything that would make her more comfortable and
to report any incidents of retaliation or harassment.
Over the next five weeks, Weidinger claims, she continued to
receive very little work from Crosby and Easter, and, although
she sometimes asked Patel for assignments, he gave her none. At
the same time, Flooring advertised for a full-time administrative
assistant; applicants were instructed to call Jan Sawtelle,
another secretary, rather than Weidinger, whereas such
advertisements had in the past read, “Call Jan or Carla.” At one
point, Weidinger says, she asked Sawtelle whether Sawtelle had
noticed that Crosby and Easter were not giving her assignments.
Sawtelle replied that she had and opined that Crosby and Easter
were trying to make Weidinger “mad.” In addition, on March 23,
Weidinger noticed fresh scratch marks on her car, and both
Robinson and Patel agreed that someone had deliberately damaged
the car. Several colleagues also told Weidinger that other co-
workers had accused her of “setting up” Crosby so that she could
“get a piece of the company” and had expressed satisfaction when
they thought she had quit after the March 14 incident.
On April 12, 1995, a demand letter from Weidinger’s
attorney, asking for $350,000.00 to compensate Weidinger and her
husband for damages suffered as a result of the alleged
harassment, was hand-delivered to Flooring. On April 19, 1995,
3
Robinson and Patel informed Weidinger that their investigation
had revealed that Crosby had acted inappropriately and assured
her that a written reprimand would be placed in his file. At the
same time, they told Weidinger that she was being transferred
from the secretarial desk outside Crosby’s office to a new,
enclosed office down the hall, that she would take over some of
Sawtelle’s duties while Sawtelle performed those assignments that
required direct contact with Crosby, and that she would
henceforth report to Patel rather than Crosby. When Weidinger
protested, Robinson and Patel explained that the move was
designed to “safeguard” both her and Crosby and that “the alleged
harasser and the alleged victim require separation.” Weidinger
then requested and received a meeting with Crosby, whom she asked
to allow her to retain her former desk and responsibilities.
Crosby told Weidinger that the move was necessary to protect them
both. That same day, two fellow Flooring employees asked
Weidinger whether she had been “demoted to second banana” and
whether “Harry [had gotten] tired of looking at [her],” and
others asked why she was sitting at a new desk and whether her
responsibilities had changed.
Weidinger filed suit in state court alleging retaliation and
constructive discharge under Title VII and raising state law
assault and intentional infliction of emotional distress claims.
Flooring removed the action to the United States District Court
for the Northern District of Texas and filed a motion for summary
judgment. The magistrate judge recommended that the district
4
court grant summary judgment on Weidinger’s federal claims and
dismiss the state law claims without prejudice. With respect to
the retaliation claim, the magistrate judge concluded (1) that
Weidinger had failed to demonstrate that she suffered an adverse
employment action and (2) that Flooring had offered a legitimate
non-retaliatory reason for transferring Weidinger and changing
her job duties, and Weidinger had failed to offer evidence that
the true reason for her transfer was unlawful discrimination. As
for the constructive discharge claim, the magistrate judge ruled
that Weidinger failed to establish that working conditions were
so intolerable that a reasonable employee would feel compelled to
resign. The district court adopted the findings and conclusions
of the magistrate judge. Weidinger appeals the grant of summary
judgment on her retaliation and constructive discharge claims.1
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, see Morris v.
Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998),
applying the same standards as the district court, see Lodge Hall
Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5th
Cir. 1987). After consulting applicable law in order to
ascertain the material factual issues, we consider the evidence
bearing on those issues, viewing the facts and the inferences to
be drawn therefrom in the light most favorable to the non-movant.
See King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). Summary
1
The dismissal of the state law claims is not at issue in
this appeal.
5
judgment is properly granted if “the pleadings, depositions,
answers to interrogatories, and admissions on file, 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); see Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986). The moving party
bears the initial responsibility of informing the district court
of the basis for its motion and identifying those portions of the
record which it believes demonstrate the absence of a genuine
issue of material fact, see id. at 323, but the nonmoving party
must come forward with specific facts showing that there is a
genuine issue for trial, see Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). This requires the
nonmoving party to do “more than simply show that there is some
metaphysical doubt as to the material facts.” Id. at 586. If
the record taken as a whole could not lead a rational trier of
fact to find for the nonmovant, there is no genuine issue for
trial. See Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir. 1995).
III. DISCUSSION
A. Retaliation
Title VII provides in relevant part that “[i]t shall be an
unlawful employment practice for an employer to discriminate
against any of his employees . . . because [that employee]
has . . . made a charge . . . under this subchapter.” 42 U.S.C.
§ 2000e-3(a). A retaliation claim has three elements: (1) the
employee engaged in activity protected by Title VII; (2) the
6
employer took adverse employment action against the employee; and
(3) a causal connection exists between that protected activity
and the adverse employment action. See Mattern v. Eastman Kodak
Co., 104 F.3d 702, 705 (5th Cir. 1997) (citing Shirley v.
Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992)). The
district court found that Weidinger failed to establish the
second and third elements.
1. Adverse Employment Action
We turn first to whether Weidinger suffered an “adverse
employment action.” Our court has stated that “Title VII was
designed to address ultimate employment decisions, not to address
every decision made by employers that arguably might have some
tangential effect upon those ultimate decisions.” Dollis v.
Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Ultimate employment
decisions include such acts as hiring, granting leave,
discharging, promoting, and compensating. See Mattern, 104 F.3d
at 707 (citing Dollis, 77 F.3d at 781-82)).
Weidinger’s claim that she suffered an adverse employment
action rests on two assertions: (1) After she complained of
sexual harassment, several co-workers ignored or gossiped about
her and Crosby and Easter avoided speaking to her, and (2) she
was assigned relatively little work after her complaint and
ultimately was transferred to a different office and relieved of
her duties as Crosby’s personal secretary. We address these
allegations in turn.
Even viewed in the light most favorable to her, Weidinger’s
7
colleagues’ alleged conduct in being hostile to her, avoiding
her, gossiping about her, and even damaging her car is not an
adverse employment action. “Hostility from fellow employees,
having tools stolen, and resulting anxiety, without more, do not
constitute ultimate employment decisions, and therefore are not
the required adverse employment actions.” Mattern, 104 F.3d at
707 (citing Landgraf v. USI Film Prods., 968 F.2d 427, 431 (5th
Cir. 1992), aff’d, 511 U.S. 244 (1994)); see DeAngelis v. El Paso
Mun. Police Officers’ Ass’n, 51 F.3d 591, 594-97 (5th Cir. 1995)
(finding no retaliation where office newsletter ran articles
routinely ridiculing the plaintiff based on her gender and her
having filed a Title VII complaint); Hill v. Mississippi State
Employment Serv., 918 F.2d 1233, 1241 (5th Cir. 1990) (finding no
retaliation where co-workers stared at employee, followed her,
delayed her disbursement checks, destroyed her identification
card, deleted experience data from a reference form, and
criticized her Title VII complaint). Nor does the alleged
reticence of Weidinger’s superiors constitute an adverse
employment action. See Webb v. Cardiothoracic Surgery Assocs.,
139 F.3d 532, 540 (5th Cir. 1998) (holding that a superior’s rude
and uncivil treatment of an employee is not an adverse employment
action). Indeed, the Supreme Court recently cautioned against
the expansion of Title VII into a general civility code. See
Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1002-
03 (1998).
Similarly, Weidinger’s complaint that she was given little
8
work and eventually was transferred to a different office,
relieved of her duties as Crosby’s personal secretary while given
certain new responsibilities, and required to report directly to
Patel instead of to Crosby does not describe an adverse
employment action. Of course, a demotion is an adverse
employment action under Title VII, and a transfer can constitute
a demotion. See Sharp v. City of Houston, 164 F.3d 923, 933 &
n.21 (5th Cir. 1999). “To be equivalent to a demotion, a
transfer need not result in a decrease in pay, title, or grade;
it can be a demotion if the new position proves objectively
worse--such as being less prestigious or less interesting or
providing less room for advancement.” Id. at 933. Thus, in
Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996), we
found that a police officer’s transfer from the Intelligence Unit
to uniformed night patrol was in fact a demotion because the
evidence “revealed that the Intelligence Unit positions were more
prestigious, had better working hours, and were more interesting
than night patrol. Moreover, few officers voluntarily
transferred from the Intelligence Unit to night patrol and other
officers had been so transferred as punishment.” But, we
cautioned, “a plaintiff’s subjective perception that a demotion
has occurred is not enough.” Id.2
2
We recognize that Sharp and Forsyth addressed claims of
retaliation in violation of the plaintiffs’ First Amendment
rights under 42 U.S.C. § 1983. While the definition of “adverse
employment action” may differ slightly under Title VII and
§ 1983, see Sharp, 164 F.3d at 933 n.21 (explaining that a
reprimand is not an “adverse employment action” under Title VII
but is under § 1983), a demotion is an “adverse employment
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Weidinger has presented no more than her own belief that she
was demoted. Weidinger did not suffer a change in job title,
compensation, and benefits. The record shows that she suggested
to Robinson and Patel that reporting to Patel, Flooring’s third-
in-command, was less prestigious than reporting directly to
Crosby, but she presents no evidence to support this claim other
than a statement in her affidavit that a fellow employee asked
her after the transfer whether she had become “second banana.”
Moreover, Patel told her that she could continue to state on her
resume that she was secretary to the president of Flooring. Nor
does she raise a genuine issue of fact as to whether her job
became less interesting after she complained. Her claim that
Crosby and Easter immediately began withholding work from her is
not supported by her own affidavit, in which she recounts
significant job functions that she was assigned and completed
each day.3 Although Weidinger insists that after she formally
moved down the hall, she lost eighty percent of her duties and
was left with some nineteen idle hours each week, she does not
support these allegations with any evidence, such as time sheets
or lists of duties. On the contrary, the record shows that
action” under both statutes, see id. In Sharp and Benningfield
v. City of Houston, 157 F.3d 369, 377 (5th Cir. 1998), we found
that a transfer can constitute a demotion under § 1983. We see
no reason why this should not also be true under Title VII.
3
Weidinger made phone calls, paged salespeople, and typed
memoranda at Crosby’s and Easter’s request, worked late to finish
a report, redid the holiday schedule, did salary draws, sorted
Texas Rangers tickets, and filled in for the absent receptionist
for several days.
10
Weidinger retained the vast majority of her previous
responsibilities, relinquishing only the making of travel
arrangements and tasks that required daily contact with Crosby.
Furthermore, Flooring assigned her to take over Sawtelle’s job of
preparing weekly repairmen draws and to assist Patel on special
projects. Although Weidinger complains that she was assigned the
draws because “[n]obody liked doing that,” she presents no
evidence to this effect other than her own conclusory statement.
Finally, she does not so much as allege that the new position
provided less room for advancement. Thus, she presents no
evidence that she suffered an adverse employment action. Because
our conclusion that Weidinger failed to establish an adverse
employment action is fatal to her Title VII retaliation claim, we
need not decide whether the district court was correct in
determining that she did not show that a causal connection exists
between activity protected by Title VII and any adverse
employment action.
B. Constructive Discharge
Weidinger also claims that she was constructively discharged
in violation of Title VII. See Miller v. Texas State Bd. of
Barber Examiners, 615 F.2d 650, 652 (5th Cir. 1980) (recognizing
“a Title VII cause of action for wrongful discharge when an
employer deliberately creates a discriminatory environment which
literally forces an employee to involuntarily resign”). In order
to prove constructive discharge, a plaintiff must establish that
her working conditions were so intolerable that a reasonable
11
employee in her position would feel compelled to resign. See
Webb, 139 F.3d at 539. In our determination, we consider many
factors relevant, including evidence of badgering, harassment, or
humiliation by the employer calculated to encourage the
employee’s resignation. See Faruki v. Parsons S.I.P., Inc., 123
F.3d 315, 319 (5th Cir. 1997) (citing Barrow v. New Orleans S.S.
Ass’n, 10 F.3d 292, 297 (5th Cir. 1994)).
Weidinger’s brief before this court insists that she meets
this standard:
Despite the prostestations of the District Court, any
reasonable person would have felt compelled to resign after
complaining of sexual harassment involving the president of
the company, after which elapsed five weeks of interminable
time standing still because [Crosby] refused to give
[Weidinger] work, being transferred and demoted within a
week of the receipt of Weidinger’s attorney’s demand letter
of April 12, 1995, and ultimately learning that Crosby was
to receive a written reprimand while she was stripped of her
job and desk, punished out of concern for her interests.
Weidinger has adduced no summary judgment evidence to show that
her working conditions were intolerable. First, as we state
above, her claim that Flooring ceased giving her work before her
transfer is belied by her own affidavit. In any case, as the
district court correctly observed, Weidinger resigned from the
post-transfer position, and it is therefore this job that we must
examine in making our constructive discharge analysis. See
Landgraf, 968 F.2d at 430-31 (evaluating, for constructive
discharge purposes, the tolerability of working conditions as
they existed at the time of resignation, not at earlier times).
Weidinger has not shown how her post-transfer job was so
intolerable that a reasonable employee in her position would feel
12
compelled to resign. After she was transferred, Weidinger
retained her previous title, pay, benefits, and most of her job
responsibilities. Although she contends that some of her new
duties were unpopular and that some of her colleagues considered
her new supervisor, Patel, a “hard ass,” she provides no evidence
that a reasonable employee would find the tasks intolerable and
conceded that she had no objection to working with Patel. Apart
from two tasteless but hardly intolerable comments from
colleagues that she must have been “demoted to second banana” and
that Crosby was “tired of looking at” her and a few questions
from co-workers as to why she was in a new office, she suffered
no badgering, harassment, or humiliation whatsoever. We see
nothing in the summary judgment record that shows that
Weidinger’s post-complaint tenure at Flooring was so intolerable
that a reasonable employee in her position would have felt
compelled to resign. The district court therefore correctly
granted summary judgment in favor of the defendants-appellees on
her constructive discharge claim.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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