United States Court of Appeals
Fifth Circuit
F I L E D
REVISED DECEMBER 7, 2004
IN THE UNITED STATES COURT OF APPEALS November 11, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60028
Summary Calendar
JANE S. THOMPSON,
Plaintiff - Appellant
versus
NAPHCARE, INC. AND RONALD D. ISAAC,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
(No. 1:02-CV-18-GRo)
Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Jane Thompson, a Registered Nurse
(“RN”), appeals the district court’s summary judgment dismissal of
her Title VII claims against her former employer, Defendant-
Appellee Naphcare, Inc. (“Naphcare”), a healthcare services
provider. She also appeals the district court’s grant of a motion
filed by her former supervisor at Naphcare, Defendant-Appellee
*
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this opinion should not be published and is not precedent except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.
Ronald D. Isaac, to dismiss for failure to state a claim under
state law.1 We affirm.
I. FACTS AND PROCEEDINGS
Plaintiff-Appellant Jane Thompson worked for Naphcare as an RN
supervisor at the Harrison County Adult Detention facility in
Gulfport, Mississippi, for a total of three months and two weeks,
viz., from June 6 to September 21, 2000. Isaac went to work at
Naphcare about a month after Thompson, on July 3, 2000, in a
supervisory role over Thompson. She contends that Isaac
immediately began a pattern of harassment, consisting of unwelcome
sexual comments and touching.
Thompson specified five such incidents. First, she testified
in her deposition that on July 3, 2000, while Isaac was introducing
himself to the staff, he asked her about her age, then commented
that she “certainly didn’t look” her age. Thompson also stated
that, while discussing with Isaac her forthcoming vacation to the
Caribbean, he commented that she had a figure that most college
girls would envy and that she should leave her husband behind and
take Isaac along instead. She further asserted that, without
invitation, Isaac twice touched her in an intrusive manner, viz.,
rubbing her shoulders, once when she was standing in a doorway and
again while she was sitting at a computer. Finally, Thompson
1
The district court also dismissed Thompson’s state law
claims against Naphcare and her Title VII claims against Isaac, but
she has not appealed these rulings.
2
averred that Isaac informed her during a private conference in his
office near the end of August that it was his responsibility to
protect her from other personnel and that if she were “not so
wrapped up with” her husband, she could see what Isaac would do for
her.
Thompson also testified that, in late August and early
September, Isaac’s attitude toward her changed; that he began
berating her in an unprofessional manner for negligible mistakes.
She added that, on or about August 30, 2000, Isaac stated that
Thompson was unprofessional and threatened to replace her unless
she improved. She contends that, at this meeting, Isaac told
Thompson that she, an RN supervisor, would thereafter be supervised
by Geraldine Wells, a Licensed Practical Nurse (“LPN”). (Thompson
concedes, however, that Isaac had appointed Wells as “clinic
supervisor” on his first day in the office; and in his affidavit,
Isaac averred that he expected Wells, who had experience working in
correctional facilities, to provide coordination and guidance to
other staff members, including RNs, on matters of security, clinic
flow, documentation, and referral matters.) Thompson complained to
Naphcare about this arrangement on September 13, 2000 and
thereafter called the Mississippi State Board of Nursing to report
the situation. (The Board did not contact Naphcare or investigate
until after Thompson had resigned.)
Thompson also contended that, on September 1, 2000, Isaac
reprimanded her for taking too much time on a visit to the Juvenile
3
Detention Facility, screaming at her and accusing her of “stealing
company time.” According to Thompson, Isaac followed up by issuing
a written warning to her, which was later revised to remove Isaac’s
charge of “theft of company time.” Thompson also stated that, on
the same day, Isaac screamed at her for continuing to examine a
patient after she had already clocked-out for the day. Isaac also
contacted Naphcare human resources on September 4, 2000 to discuss
extending Thompson’s probationary period because of “performance
issues.” He discussed this extension in a private meeting with
Thompson and another co-worker on September 6, 2000, but neither he
nor Thompson produced testimony from the co-worker who allegedly
witnessed this exchange. At this same meeting, Isaac gave Thompson
a set of guidelines delineating areas in which she had to improve,
including establishing priorities, completing paperwork, and
training on specified equipment. Thompson said that Isaac called
her “incompetent” during this meeting.
Thompson consulted an attorney on August 30, 2000 concerning
Isaac’s allegedly discriminatory behavior. Naphcare first received
notice of Thompson’s accusations on September 5, 2000, when Isaac’s
supervisor, Bob Malone, received a letter from Thompson’s attorney.
Two days later, Naphcare dispatched Ashley Clark, its director of
human resources, and Vance Alexander, its in-house counsel, to the
Harrison County worksite to investigate the charges that Thompson’s
lawyer had leveled. Clark and Alexander interviewed individuals
identified by Thompson as witnesses to the alleged events but were
4
unable to substantiate the charges raised in the letter from her
lawyer. In fact, the Naphcare employees who were interviewed by
Clark and Alexander denied witnessing any inappropriate behavior on
the part of Isaac. An employee who witnessed the conversation
about Thompson’s Caribbean vacation recalled that Isaac mentioned
wanting to go on vacation, but did not find Isaac’s comments to be
inappropriate or offensive. LPN Wells was also present during some
of the allegedly unseemly conversations: Wells denied witnessing
anything inappropriate between Isaac and Thompson. The
investigators also noted that the office was much like a
“fishbowl,” in that glass walls enclosed three walls of Isaac’s
office, and only a half wall separated the nurses’ station from the
main administrative area.
Despite the absence of verification of the charges against
Isaac, the investigators instructed him not to communicate with
Thompson without other employees being present. After Naphcare’s
investigators left, Isaac approached Thompson to apologize and to
try to explain his position. Thompson found this action
inappropriate and complained to Clark, who told Isaac’s supervisor,
Malone, to instruct Isaac not to discuss the matter further with
Thompson.
On September 13, the day Isaac left on vacation and the day
preceding her own final day of work at Naphcare, Thompson
complained to Clark and Malone that her work had been too closely
scrutinized by LPN Wells that day. Thompson also reported that
5
Isaac had telephoned the office that day and, after speaking with
Wells, had accused Thompson of refusing to do her work.
Following the September 7 investigation, Thompson worked until
September 14, took paid leave for health reasons September 18-20,
and resigned on September 21. She thus worked a total of only
seven days after the investigation. Other than Isaac’s unwelcome
apology and the September 13 phone conversation, Thompson did not
claim to have had any contact with him from the time of Naphcare’s
September 7 investigation until her resignation on September 21.
She did assert that it was at Isaac’s direction that LPN Wells’s
supervision became onerous and overly critical following the
investigation.
On September 21, after Naphcare informed Thompson that it
could not substantiate her allegations, she tendered her letter of
resignation. In it she stated that she was resigning on
instructions from her doctor. Thompson now insists, however, that
she had no choice but to resign and that Naphcare is responsible
for her constructive discharge.
Thompson filed this complaint in January 2002, advancing
claims of sexual harassment, hostile work environment, and
constructive discharge —— all under 42 U.S.C. § 2000e et seq.
(“Title VII”) —— arising from advances allegedly made by Isaac
while he was Thompson’s supervisor at Naphcare. Thompson also
claimed that Naphcare was liable under state law for intentional
infliction of emotional distress, failure to enforce Title VII, and
6
constructive wrongful termination. She later amended her complaint
to add Title VII and state law wrongful termination claims against
Isaac individually. The district court dismissed Thompson’s claims
against Isaac for Title VII violations and wrongful termination,
holding under Rule 12(b)(6) that Thompson had failed to state
claims for which relief could be granted. Following discovery, the
district court granted Naphcare’s summary judgment motion to
dismiss all remaining claims, and this appeal ensued. On appeal,
Thompson only complains of the dismissal of her Title VII sexual
harassment and constructive discharge claims against Naphcare and
her state law emotional distress claims against Isaac.2
II. ANALYSIS
A. Standard of Review
The district court dismissed Thompson’s claims against
Naphcare on its motion for summary judgment and against Isaac for
failure to state a claim. We review both rulings de novo.3
B. Sexual Harassment Claims Against Naphcare
2
Thompson contends that she brought a state law claim for
emotional distress in addition to her wrongful termination and
Title VII claims against Isaac at the trial court level, and argues
that the district court erred in not addressing this claim in its
order granting Isaac’s motion for dismiss for failure to state a
claim. As we conclude, infra, however, she did not state such a
claim in her amended complaint.
3
Gibson v. U.S. Postal Serv., 380 F.3d 886, 888 (5th Cir.
2004); Jackson v. City of Beaumont Police Dep’t, 958 F.2d 616, 618
(5th Cir. 1992).
7
In a Title VII sexual harassment suit, the plaintiff must
establish a prima facie case by showing that (1) she belongs to a
protected class; (2) she was subjected to unwelcome harassment; (3)
the harassment was based on sex; (4) the harassment complained of
affected a “term, condition or privilege of employment”; and (5)
the employer knew or should have known of the harassment but failed
to remedy the situation.4 Thompson advanced sexual harassment
claims of both the quid pro quo and the hostile work environment
varieties. The former requires a showing of a tangible employment
action to satisfy the fourth prong of the foregoing test; the
latter requires a showing, in the absence of a tangible employment
action, that a supervisor’s harassment was nevertheless
sufficiently severe or pervasive to alter a term or condition of
employment.5 This distinction makes a difference. An employer
held vicariously liable for quid pro quo harassment on a finding
that it took a tangible employment action toward an employee who
either accepted or rejected a supervisor’s sexual harassment is
4
DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d
591, 593 (5th Cir. 1995). The parties argue about whether we
should employ the “motivating factor” analysis from the Supreme
Court’s recent Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003) decision in this case; as we hold that Thompson has not made
out a prima facie case, there is no need to address this argument
on appeal. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312
(5th Cir. 2004) (holding Desert Palace’s mixed motive analysis
applicable in ADEA cases, but noting that plaintiffs still must
demonstrate a prima facie case of discrimination).
5
See Burlington Indus. v. Ellerth, 524 U.S. 742, 753-54
(1998). See also Jones v. Flagship Int’l, 793 F.2d 714, 719-20,
721-22 (5th Cir. 1986).
8
conclusively presumed to have had notice of the offending
supervisor’s conduct and will not be permitted to advance the
affirmative defense enunciated by the Supreme Court in Burlington
Industries, Inc. v. Ellerth6 and Faragher v. City of Boca Raton.7
In contrast, an employer that is found not to have taken a tangible
employment action toward the harassed employee but is found to have
maintained a hostile work environment by virtue of severe or
pervasive supervisor sexual harassment may nevertheless advance the
Ellerth/Faragher affirmative defense.8
Thus, when addressing a claim of supervisor sexual harassment,
we must first determine whether an employee has suffered a tangible
employment action.9 An affirmative answer would demonstrate the
existence of quid pro quo harassment and thus automatic employer
6
524 U.S. 742 (1998).
7
524 U.S. 775 (1998); see Casiano v. AT&T Corp., 213 F.3d
278, 284 (5th Cir. 2000)(explaining that a finding of hostile
environment will not result in vicarious liability if the employer
can prove that it “exercised reasonable care to prevent and correct
promptly any sexual harassment, and...the employee unreasonably
failed to take advantage of any preventative or corrective
opportunities provided by the employer or to avoid harm otherwise,”
but that this affirmative defense is not available to an employer
that has taken a tangible employment action.
8
See Casiano, 213 F.3d at 283-84 (addressing the Supreme
Court’s “clear road map” for disposing of supervisor sexual
harassment cases under Title VII as set out in Burlington Indus. v.
Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton,
524 U.S. 775 (1998)).
9
Casiano, 213 F.3d at 284.
9
liability.10 In contrast, a conclusion that the employee was not
the object of a tangible employment action requires a determination
whether the supervisor’s sexual harassment was nevertheless so
severe or pervasive that it created a “hostile environment.” Even
if we find such a condition to have been created, though, the
employer may escape vicarious liability by successfully advancing
the Ellerth/Faragher affirmative defense.11
1. Quid pro quo
As noted above, our initial inquiry is whether the employee
experienced a tangible employment action at all. A tangible
employment action usually causes economic harm to an employee, yet
this is not always the case.12 A demotion or substantial diminution
in job responsibilities may also produce a tangible employment
action, even if the employee experiences no economic injury.13 The
purpose of Title VII is to remedy ultimate employment decisions,
not to challenge every interim action taken by an employer that may
have a tangential effect on an ultimate decision.14 Thus, to have
10
Id.
11
Id.
12
Green v. Adm’r of Tulane Educ. Fund, 284 F.3d 642, 654 (5th
Cir. 2002).
13
See id. at 654-55 (citing Ellerth v. Burlington Indus., 524
U.S. 742, 761 (1998)).
14
Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
10
taken a tangible employment action, an employer must have made an
employment decision.
We hold as a matter of law that Thompson failed to demonstrate
that she suffered a tangible employment action at Naphcare. She
did not allege any diminution in her compensation or in her job
responsibilities; neither did she allege that she was demoted.
Thompson alleged only that (1) Isaac screamed at her for taking
too long to go to the Juvenile Detention Center and gave her a
written warning for the same conduct, (2) extended her probationary
period an additional forty-five days, and (3) caused her work to be
unduly scrutinized by Wells, an LPN. None of these actions rises
to the level of an ultimate employment decision; indeed, we have
specifically held that increased criticism of an employee’s work
does not constitute a tangible employment action.15 Absent a
tangible employment action, Thompson’s quid pro quo claim fails.
The absence of a tangible employment action does not, however,
prevent an employee from establishing the existence of a hostile
work environment.
2. Hostile work environment
15
See Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997). As
we hold, infra, that Thompson has not stated a claim for
constructive discharge either, this may not serve as a tangible
employment action for her quid pro quo claim. See Wyatt v. Hunt
Plywood Co., Inc., 297 F.3d 405, 410 n.11 (5th Cir. 2002)(noting
that the plaintiff had not advanced a coherent claim for
constructive discharge and had therefore alleged no tangible
employment action to support her charge of quid pro
quo harassment).
11
For supervisor sexual harassment to be actionable as a hostile
work environment claim, it must be “sufficiently severe or
pervasive to alter the conditions of employment and create an
abusive working environment.”16 A sexually objectionable
environment must be both objectively and subjectively offensive to
give rise to a cause of action under Title VII.17 Determination of
whether an environment is offensive or abusive requires an ad
hoc analysis, “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 an employee’s work
performance.”18
Thompson contends that Isaac’s behavior on the five specified
occasions over the course of a month and a half created a hostile
work environment: two when he touched or rubbed her shoulders;
another when he told her that she did not look her age; again when
he told her that she had the figure of a college girl and asked to
accompany her on vacation in the place of her husband; and,
finally, when, in a private conference in his office, he told her
that if she were not so wrapped up in her husband, she would “see
what [Isaac] could do for her.” If verified, Isaac’s actions would
16
Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).
17
Green, 284 F.3d at 655.
18
Id. at 655-56.
12
be boorish, offensive, and uncouth, particularly with respect to
the last remark.19
Regardless, even if we were to assume arguendo that Isaac’s
actions did create a hostile working environment, we would
exonerate Naphcare on its affirmative defense that (1) it took
reasonable care to prevent the harassment and (2) Thompson
unreasonably failed to take advantage of the preventative or
corrective opportunities provided by Naphcare.20 Naphcare presented
evidence that its Employee Handbook, which Thompson acknowledges
receiving, included a complaint procedure by which employees should
directly contact a Human Resources manager regarding employment
discrimination claims if the employee did not feel comfortable
addressing the issue with their immediate supervisor or other
manager. Also, once Naphcare received Thompson’s complaint, it
immediately sent two high level executives to Thompson’s worksite
to investigate her claims. And, even though they could not
substantiate Thompson’s claims, these investigators forbade Isaac
to have solo encounters with Thompson. Inasmuch as Thompson did
not allege any further sexually harassing conduct on the part of
Isaac after completion of the investigation by Naphcare, the
employer’s response to her complaints was not ineffectual. By
19
See, e.g., Jones v. Flagship Int’l, 793 F.2d 714, 720-21
(5th Cir. 1986) (holding that a supervisor’s sexual propositioning
of an employee on three separate occasions was not sufficiently
severe or pervasive to create a hostile working environment).
20
See Casiano, 213 F.3d at 284.
13
taking these actions, Naphcare exercised reasonable care to prevent
and correct promptly this alleged sexual harassment in the
workplace.21 Conversely, by waiting almost two months to register
her complaints and then resigning almost immediately after
Naphcare’s prompt investigation and remedial actions, Thompson can
not be said to have acted reasonably.22
C. Constructive Discharge Claim Against Naphcare
Thompson also asserted that Isaac’s harassing conduct,
followed by his increased criticism and supervision of her work,
caused her to be constructively discharged. To demonstrate
constructive discharge, a plaintiff must prove that working
conditions were so intolerable that a reasonable person in the
plaintiff’s position would feel compelled to resign.23 An
employee’s obligation of reasonableness requires that she not jump
to conclusions and not assume the worst.24 Whether a reasonable
employee would feel compelled to resign depends on the
circumstances, with special consideration, inter alia, of seven
21
See id.
22
See Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 413 (5th
Cir. 2002)(holding that the plaintiff’s refusal to report
supervisor’s discriminatory conduct to his next higher supervisor
according to company policy was unreasonable and resulted in no
vicarious liability for the employer).
23
Webb v. Cardiothoracic Surgery Assoc. of North Tex., 139
F.3d 532, 539 (5th Cir. 1998).
24
Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 310
(5th Cir. 1987) (citations omitted).
14
non-exclusive factors: (1) demotion; (2) reduction in salary; (3)
reduction in job responsibilities; (4) reassignment to menial or
degrading work; (5) reassignment to work under a younger
supervisor; (6) badgering, harassment, or humiliation by the
employer calculated to encourage the employee’s resignation; and
(7) offers of continued employment on terms less favorable than the
employee’s former status.25 Thompson did not prove the presence of
any of these factors. Thompson also failed to present any other
evidence sufficient to show that her working conditions were
intolerable.26
Taken together, Thompson’s allegations amount to five
instances of putative sexual harassment, a few occasions on which
she was more harshly reprimanded by her supervisor than she
believes was warranted, and overly strict supervision by an LPN
whom Thompson believed to be unqualified to supervise her work. As
to the harassing conduct, Naphcare unquestionably took prompt
remedial action, and Thompson does not allege that Isaac’s
discriminatory behavior continued after the investigation.27 As to
the increased supervision and criticism, this took place over a
25
Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir.
1994).
26
See Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir.
1997).
27
See Wells, 139 F.3d at 539-40 (“The summary judgment
evidence reflects that [the employer] took prompt remedial action
to prevent any future harassment. This factor alone is fatal to
[the plaintiff’s] claim of constructive discharge.”).
15
period of no more than two weeks in early September 2000, after
which Thompson took medical leave and then resigned. We are
satisfied that the incidents alleged by Thompson to have created an
intolerable working environment were not of a sufficient magnitude
to do so. We are also satisfied that an employee who resigns
without affording the employer a reasonable opportunity to address
her concerns has not been constructively discharged.28 Like her
sexual harassment claims, Thompson’s constructive discharge claim
against Naphcare fails.
D. Claims Against Isaac
In granting Isaac’s Rule 12(b)(6) motion, the district court
dismissed all of Thompson’s claims against him. Thompson argues on
appeal that, even if the district court did not err as to her other
claims against Isaac, it erred in failing to address her claim
against him for intentional infliction of emotional distress. As
Thompson did not raise such a claim against Isaac in her amended
complaint, however, she may not raise it for the first time on
28
See Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.
2001)(holding that the plaintiff had not shown constructive
discharge by alleging that he had been transferred to a less
profitable store than the one at which he had previously worked,
“particularly in light of the fact that he was pursuing an EEOC
remedy that could have addressed any discrimination he suffered. .
.”). See also Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.
1990)(holding that, in most cases, a reasonable employee would
pursue internal remedies or file an EEOC complaint before
resigning, and that employees best serve the purposes of Title VII
if they attack discrimination within the context of the employment
relationship).
16
appeal.29 We affirm the court’s dismissal of all claims against
Isaac.
III. CONCLUSION
For the foregoing reasons, all rulings of the district court
appealed by Thompson are
AFFIRMED.
29
See North Alamo Water Supply Corp. v. City of San Juan, 90
F.3d 910, 916 (5th Cir. 1996).
17