IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-31345
_____________________
CAROL DENISE MAYBERRY,
Plaintiff - Appellant,
versus
CONOCO, INC.,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
U.S.D.C. No. 99-CV-411
December 27, 2001
Before JOLLY and PARKER, Circuit Judges, and SPARKS,* District
Judge.
PER CURIAM:**
Carol Mayberry was employed by Conoco from November 3, 1990 to
July 31, 2000. Mayberry alleges that during that time she suffered
sexual harassment because of a hostile work environment in
violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). The district
court granted Conoco’s motion for summary judgment, finding, inter
alia, that Mayberry’s sex discrimination complaint was time-barred.
Because Mayberry has failed to show that she suffered any act
*
District Judge of the Western District of Texas, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
of sexual harassment during the 300 days before she filed her EEOC
charge, we affirm the district court’s grant of summary judgment.
II
On September 3, 1998, Mayberry filed a charge with the EEOC.
The EEOC issued a “right to sue” letter. On March 10, 1999,
Mayberry filed a complaint against Conoco alleging (1) sex
discrimination (i.e, sexual harassment through a hostile work
environment); (2) discrimination in the terms of conditions of
employment based on her disability (an Americans with Disabilities
Act (ADA) claim); and (3) a retaliation-based claim. Conoco moved
for summary judgment. The district court granted Conoco’s motion,
holding that (1) Mayberry’s sex discrimination claim was time-
barred; (2) Mayberry’s ADA claim did not raise a genuine issue of
material fact; and (3) Mayberry had failed to show any retaliation
by Conoco induced by her in-house or EEOC discrimination
complaints. Mayberry appeals only the district court’s holding
that her sex discrimination claim was time-barred.
III
To establish that her sex discrimination claim is not time-
barred, Mayberry must show that she suffered an act of
discrimination within 300 days of the date she filed her charge
with the EEOC.1
1
The district court wrongly applied a 180-day limitation
period in this case. Because Louisiana is a deferral state, the
300-day limitation period applies. See Mennor v. Fort Hood
National Bank, 829 F.2d 553, 554-55 (5th Cir. 1987).
2
On September 3, 1998, Mayberry filed her charge with the EEOC;
300 days prior to this date is November 7, 1997. The question is
simple: Did Mayberry suffer sexual harassment between November 7,
1997 and September 3, 1998?
To establish a sex discrimination claim based on sexual
harassment a plaintiff must show that “(1) she belongs to a
protected class; (2) was subjected to unwelcome sexual harassment;
(3) the harassment was based on her sex; (4) the harassment
affected a term, condition, or privilege of her employment; and (5)
[the employer] knew or should have known of the harassment and
failed to take remedial action.” Cain v. Blackwell, 246 F.3d 758,
760 (5th Cir. 2001). “Whether an environment is hostile or abusive
depends on a totality of circumstances, focusing on factors such as
the frequency of the conduct, the severity of the conduct, the
degree to which the conduct is physically threatening or
humiliating, and the degree to which the conduct unreasonably
interferes with the employee’s work performance.” Weller v.
Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)
(citation omitted).
The activities that took place during that relevant time
period include: (1) Clark’s and Young’s statements that they would
not support her for promotion; (2) the human resources department’s
suggestion that Mayberry see a psychiatrist; (3) Conoco’s requests
for additional documentation showing that Mayberry was actually
3
sick when taking sick leave; (4) the anonymous note left on
Mayberry’s desk suggesting that she was taking advantage of
Conoco’s sick leave policy; and (5) Conoco’s refusal to provide
Mayberry with a home office.
Mayberry contends that each of these activities alone –- or,
alternatively, the activities taken together –- created a hostile
work environment. We find this argument to be without merit. For
an activity (or set of activities) to create a hostile work
environment, the activity must be related to the sex of the
employee. Weller, 84 F.3d at 194 (citations omitted).
In the instant case, the activities in question were not based
on Mayberry’s sex. We examine each activity in turn.
First, there are Clark’s and Young’s statements that they
would not support Mayberry for promotion. Before these statements
were made, Mayberry missed countless days of work due to illness.
The record shows that the reason that Clark and Young did not
support Mayberry for promotion was because she was regularly absent
from work –- not because she was a woman.
Second, there is the human resources department’s request that
Mayberry seek psychiatric care. Mayberry provides no evidence that
the human resources department made this request because of her
sex; that is, Mayberry offers no evidence that the people working
in human resources had some gender-based animus. The record shows
that the human resources department suggested mental health care
4
because Mayberry gave the appearance that she was having mental
health problems.
Third, there is Conoco’s request for additional documentation
to prove that Mayberry was actually sick when on sick leave. The
record shows that Mayberry was constantly sick. Conoco’s request
for this documentation therefore appears reasonable. Mayberry
provides no evidence connecting these requests to the fact that she
is a woman.
Fourth, there is the anonymous note that was left on
Mayberry’s desk suggesting that she was taking advantage of the
sick leave policy. As noted above, Mayberry was continually out
sick from work. She then took a vacation. Although the note might
be considered rude, there is no evidence that it was in any way
based on Mayberry’s sex.
Finally, there is Conoco’s refusal to set-up a home office for
Mayberry. The reason Conoco did not provide Mayberry this benefit
is unclear from the record. Nevertheless, Mayberry must raise a
“genuine issue of material fact” to survive Conoco’s motion for
summary judgment. See Fontenot v. Upjohn Co., 780 F.2d 1190, 1196
(5th Cir. 1986). Mayberry points to no evidence that supports an
argument that because Mayberry was a woman, Conoco refused to set
up a home office.
In sum, Mayberry has failed to provide any evidence that shows
she suffered sexual harassment through a hostile work environment
during the 300 days prior to filing a charge with the EEOC. In
5
that period, each of the activities –- which Mayberry contends
created the hostile environment –- was based on factors other than
her sex.
Accordingly, we find that Mayberry’s sex discrimination claim is
time-barred.2 The district court’s grant of summary judgment is
A F F I R M E D.
2
Mayberry also argues that we should toll the statute of
limitations period because there was a “continuing violation” of
her rights. This argument is without merit. “The continuing
violation theory relieves a plaintiff of establishing that all of
the complained-of conduct occurred within the actionable period if
the plaintiff can show a series of related acts, one or more of
which falls within the limitations period.” See Messer v. Meno,
130 F.3d 130, 134 (5th Cir. 1997)(citing Berry v. Board of
Supervisors of LSU, 715 F.2d 971, 979 (5th Cir. 1983)). In short,
Mayberry must “link” conduct occurring within the relevant period
with conduct that occurred before the relevant time period. See
Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998). Mayberry has
not provided any evidence to show that such a link exists in this
case.
6