Hockman v. Westward Communications, LLC

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 22, 2004

)))))))))))))))))))))))))) Charles R. Fulbruge III
Clerk
No. 03-41620

))))))))))))))))))))))))))

LADONNA HOCKMAN,

Plaintiff-Appellant,

vs.

WESTWARD COMMUNICATIONS, LLC; ET AL,

Defendants,

WESTWARD COMMUNICATIONS, LLC; WESTWARD COMMUNICATIONS, LP,

Defendants-Appellees.

Appeals from the United States District Court
for the Eastern District of Texas

Before WIENER and PRADO, Circuit Judges, and LITTLE, District
Judge.*

EDWARD C. PRADO, Circuit Judge:**

Ladonna Hockman sued Westward Communications, LLC and

Westward Communications, LP (collectively “Westward”) asserting

various claims under 42 U.S.C. §§ 2000 et seq. (“Title VII”). The

*
District Judge for the Western District of Louisiana,
sitting by designation.
**
Pursuant to 5TH CIRCUIT 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that this opinion should not be published and is not precedent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 5TH CIRCUIT
RULE 47.5.4.

1
district court granted Westward’s motion for summary judgment on

all claims, and Hockman appealed. We now affirm.

I. Background

Westward owns certain newspapers in East Texas that are

involved in this lawsuit: the Grand Saline Sun in Grand Saline,

the Wood County Democrat in Quitman, and the Edgewood Enterprise

in Edgewood. At all times relevant to this lawsuit, Nell French

was the publisher of all three papers and Hockman’s immediate

supervisor. Oscar Rogers ran a commercial printing press from the

back of the Grand Saline Sun office. Aggie McDonald was the

composition and graphics manager. Molly Harvill was the office

manager.

Hockman actually worked for Westward twice. First, she

worked as the assistant editor of the Edgewood Enterprise from

July 30, 1998 to June 30, 1999. The reason for Hockman’s 1999

departure is disputed: Hockman claims that she left because of a

“personality clash” with the paper’s publisher at that time, Jan

Adamson; Westward claims that Hockman was involved in a theft.

Regardless of the reason, Hockman was rehired in April 2001 as an

editor for the Grand Saline Sun.

When Hockman rejoined the Westward team, she was provided

with a copy of the employee handbook which contains the company’s

antiharassment policy. The policy provides for the following in

the event of a complaint:

2
 If an employee believes that he or she is being
subjected to harassment of any kind, the incident(s)
must be reported promptly to his/her supervisor. If the
employee feels that it would be inappropriate to report
the matter to the immediate supervisor, or the matter is
not satisfactorily resolved at this level, the employee
should report the incident(s) directly to the Director,
Human Resources at 440-746-1701.

On July 24, 2001, Hockman signed an acknowledgement form,

attesting that she had received a copy of the handbook and

understood its provisions.

Hockman claims that soon after she returned to Westward,

Rogers began to harass her in the following ways: First, Rogers

commented on the body of a former Westward employee, Sheila

Ledesma. Specifically, Hockman claims that “[Rogers] would tell

her that Sheila Ledesma had a nice behind and body.” Next,

Hockman claims that beginning in July of 2001, Rogers would brush

up against her breasts and behind. Third, Hockman claims that on

one occasion, Rogers “slapped [her] behind with a newspaper.”

Fourth, Rogers once attempted to kiss Hockman. Fifth, on more

than once occasion, Rogers asked Hockman to come in early so that

they could be alone together. Finally, Rogers once stood in the

doorway of the ladies’ restroom as Hockman was washing her hands.

Rogers stepped aside, however, when Hockman exited the restroom.

On October 11, 2001, Hockman and her coworker, Harvill, told

their supervisor, French, that they had been harassed by Rogers.

The parties dispute what happened next. Hockman claims that she

did not go to French before October of 2001 because she was

3
embarrassed. However, Hockman discussed Rogers’s behavior with

Harvill and McDonald before approaching French. Both women

allegedly told Hockman that they had also been harassed by Rogers.

According to Hockman, she and Harvill told French that Rogers

had touched them inappropriately, and Hockman told French that

Rogers had once tried to kiss her. In response, French asked

Hockman how she wanted the situation handled. Hockman claims that

she responded that she was not sure what French was supposed to do

in this situation, that she was sure there was a formal procedure

for handling such complaints, and that French should take action

in compliance with that procedure. Hockman claims that French

then directed her to a sexual harassment policy which was

purportedly for a previous company named Howard and Bluebonnet and

was not in effect for Westward during the relevant time period.

Hockman claims that to her knowledge, French never acted on her

complaint; Hockman reapproached French once or twice, but French

again asked Hockman what she was supposed to do about the

situation.

Westward’s account of the October 11 and post-October 11

events is completely different. According to Westward, when

approached by Hockman on October 11, 2001, French asked her if she

wanted to lodge a formal complaint and Hockman said that she did

not; she did not want to jeopardize her working relationship with

Rogers. French claims that she informed Hockman that Rogers’s

4
actions may constitute sexual harassment and that they could get

fired if they did not file a formal complaint. Hockman then told

French that McDonald would corroborate her allegations, but she

nonetheless remained unwilling to file a formal complaint against

Rogers. Rather, Hockman told French that she wanted French to

talk to McDonald before taking any formal action.

French claims that she immediately investigated Hockman’s

allegations. First, she contacted six other Westward employees

who had worked with Rogers. Each stated that they had neither

witnessed nor suffered any harassment at the hands of Rogers.

Next, on approximately October 23, 2001, French met with

McDonald, who refused to support Hockman’s allegations. McDonald

claimed that she had not experienced inappropriate behavior by

Rogers, nor was she aware of any other Westward employee towards

whom Rogers engaged in sexually inappropriate behavior.

For the next three weeks, French followed up with Hockman

weekly, asking Hockman whether she was ready to file a formal

complaint against Rogers. According to French, Hockman

consistently refused to file a complaint. French thereafter

concluded that Hockman’s allegations were meritless.

Hockman, however, asserts that she was not hesitant about

filing a formal complaint against Rogers after she spoke to French

on October 11. Rather, according to Hockman, French had

previously told her “never to go above [French’s] head.” Hockman

5
contends that because of French’s directive, Hockman believed that

she would be fired if she reported the harassment to anyone else.

Westward claims that in the fall of 2001, the Chief Operating

Officer of the Sun and the Enterprise, J. Tom Graham, began

analyzing ways to manage the papers more efficiently because both

papers were doing poorly financially. Because French divided her

time among three different Westward papers, Graham decided to

create an assistant publisher position to manage the business and

editing duties of the Sun and the Enterprise. With the creation

of such a position, Hockman’s editor position would become

unnecessary.

Graham wanted someone with business experience to be the new

assistant editor; Hockman had none. Accordingly, Graham concluded

that she was not qualified for the new job. Hockman was

consequently set to be discharged upon the creation of the new

position. On February 7, 2002, Wilbur Callaway was offered the

assistant editor position. Because Callaway had requested that

his wife work with him, Westward offered her a position answering

telephones and assisting Callaway at the Edgewood Enterprise.

On February 19, 2002, Graham; Robert McMaster, the Chief

Executive Officer of Westward; and Gina Fisher, Westward’s

Director of Human Resources, received a letter from Hockman’s

attorney stating that Hockman intended to file a complaint with

the Equal Employment Opportunity Commission (“EEOC”) asserting

6
claims of sexual harassment and sex discrimination against

Westward.

According to Westward, Fisher immediately launched an

investigation. On February 20, 2002, Fisher contacted

Hockman——who refused to speak with Fisher out of her attorney’s

presence——and French, who told Fisher that Hockman had not wanted

to pursue a formal complaint on October 11, 2001. That same day,

Fisher contacted McDonald, who stated that she had not witnessed

any harassment by Rogers. Fisher also called Bill Holder, the

Regional Vice President of Westward. Fisher asked Holder to be

present during a phone conversation between Fisher and Rogers.

During that conversation, Fisher informed Rogers of the

allegations against him, which he emphatically denied.

The next day, Fisher spoke to Hockman by telephone while

Hockman was at her attorney’s office. Fisher asked Hockman why

she had never contacted her after the October 11 meeting with

French. Hockman stated that French had told her “never to go

above her head.”

At that time, Graham, McMaster, and Fisher decided to

separate Rogers and Hockman, who were both working at the Grand

Saline Sun. Westward made Hockman the editor of the Edgewood

Enterprise. Although, according to Westward, the company had

previously decided to discharge Hockman when Callaway’s employment

began, given the pending harassment claim, Westward now believed

7
that it was better to separate Hockman from Rogers than to

terminate her employment. To afford keeping Hockman on as a

Westward employee, Westward rescinded its offer of employment to

Callaway’s wife.

Hockman claims that the Enterprise facility was filled with

“numerous spiders and webs, hundreds of cricket corpses, dead

rats, maggots, old newspapers, thick dust, bodily fluids on the

desk and wall and feces and urination,” and that she had to clean

up this mess in retaliation for her allegations against Rogers.

Westward, of course, paints a different picture of the Enterprise

and Edgewood. Westward claims that as editor of the Enterprise,

Hockman’s pay and benefits did not change; thus, this was a purely

lateral transfer. Moreover, Hockman was reimbursed for mileage

between Grand Saline (where she lived) and Edgewood (where she

worked), even though Hockman’s children attended school in

Edgewood and she had often made that commute when she worked at

the Sun. Finally, Hockman had worked at the Enterprise during her

first stint of employment with Westward.

According to Westward, Fisher was continuing her

investigation during this time. On February 28, 2002, she again

interviewed both French and Rogers. From March 1st through 4th,

she interviewed current and former Westward employees, almost all

of whom denied observing or being aware of any sexually

inappropriate behavior by Rogers. The only interviewee who told

8
Fisher of any potentially inappropriate behavior by Rogers was Jan

Adamson, a former publisher of the Sun. Adamson told Fisher that

approximately seven or eight years before, Rogers had made

“innuendos” at work. However, Adamson also explained that all of

the employees were “raunchy in the office.” Adamson had been

terminated by Westward, and told Fisher that she hoped “Westward

would get theirs” and that she “hated Westward.” Because of

Adamson’s bias and the lack of evidence to support Hockman’s

allegations, Fisher determined that there was no corroborating

evidence of harassment or sexually inappropriate behavior by

Rogers.

On March 6, Fisher again contacted McDonald. McDonald again

denied experiencing any harassment by Rogers. However, she did

tell Fisher about discriminatory remarks Hockman had made about

Rogers before she had been transferred to Edgewood. According to

McDonald, Hockman had learned that a grand jury had refused to

indict Hockman’s husband’s ex-wife on a trespassing charge.

Rogers had served as the foreman of the grand jury which had

considered the charge. Outraged by the grand jury’s decision to

“no-bill” her husband’s ex-wife, Hockman allegedly stated that

“Rogers’s job would be gone by next Friday” and referred to him by

the “N word.”

On March 13, 2002, Fisher called Rogers and French to tell

them that the results of her investigation were inconclusive.

9
Fisher warned Rogers, however, that any sexually inappropriate

behavior was prohibited. The following day, Fisher made a

conference call to Hockman and French. During this call, Fisher

told Hockman that there was no evidence to support her allegations

and warned her not to engage in racially inappropriate behavior at

work.

Hockman was still working at the Edgewood Enterprise when

Fisher concluded her investigation. As part of her duties at the

Enterpise, Hockman was responsible for helping to “paste up” the

paper——stories are laid out on sheets to later be printed as part

of the newspaper. Paste ups were done on Tuesday of each week at

the Wood County Democrat facility in Quitman (the Edgewood

facility lacked the appropriate equipment). At the beginning of

April 2002, Hockman missed three consecutive work days, one of

which was a paste up day. Hockman had also missed the paste up

day of the previous week. According to Westward, on April 2,

2002, Holder issued Hockman a written warning that her absences

were inexcusable. Two days later, on April 4, 2002, Hockman

tendered her resignation to Westward.

Hockman characterizes the “paste up” incident much

differently than does Westward. Hockman claims that Rogers’s

harassment caused her to develop a sleeping disorder which

required medication and several absences from work. Because of

these absences, Holder issued her a directive “not to be sick on

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Tuesdays” and ordered her to provide written confirmation from her

doctors’ offices reflecting the times and dates of any future

appointments. Hockman quit on April 4, 2002, claiming that her

doctor instructed her to resign from Westward because the

harassment was having a negative effect on her health. She claims

that she was constructively discharged from Westward.

II. Procedural History

On February 27, 2002, Hockman filed a claim with the EEOC

alleging sexual harassment, retaliation, and constructive

discharge in violation of Title VII. On July 25, 2002, the EEOC

issued Hockman a determination letter finding insufficient

evidence of her allegations. On October 23, 2002, Hockman filed

suit against Rogers and Westward alleging sexual harassment,

retaliation, constructive discharge, and sex discrimination

against Westward and various state law claims against Rogers. On

September 18, 2003, the district court granted Westward’s motion

for summary judgment on all federal claims against Westward, and

declined to exercise supplemental jurisdiction over Hockman’s

state law claims against Rogers.1

Hockman appealed, claiming that the district court erred in

granting Westward’s motion for summary judgment as to her hostile

work environment, retaliation, and constructive discharge claims.

1
The district court dismissed Hockman’s state law claims
against Rogers without prejudice.

11
We will consider each claim in turn.

III. Summary Judgment Standard

We review a district court’s grant of summary judgment de

novo, applying the same standard as the district court. Shepherd

v. Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir.

1999). Summary judgment is appropriate 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 nonmoving party

is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c). We review the record in the light most favorable to the

nonmovant and draw all reasonable inferences in her favor. Fabela

v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003).

IV. Discussion

A. Hostile Work Environment

Hockman first claims that she was subjected to a hostile work

environment in violation of Title VII. A hostile-work-environment

claim consists of five elements: (1) the plaintiff belongs to a

protected group; (2) she was subjected to unwelcome sexual

harassment; (3) the harassment complained of was based on sex; (4)

the harassment affected a term, condition, or privilege of her

employment; and (5) her employer knew or should have known of the

harassment and failed to take prompt remedial action. Jones v.

Flagship Int’l, 793 F.2d 714, 719–20 (5th Cir. 1986). Only

12
elements four and five are in dispute.

1. Whether the Harassment Affected a Term, Condition,
or Privilege of Employment

For harassment to affect a term, condition, or privilege of

employment, it must be both objectively and subjectively abusive.

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993); Butler

v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998).

Whether an environment is objectively hostile or abusive is

determined by considering the totality of the circumstances.

Harris, 510 U.S. at 23. Although no single factor is required,

courts look to (1) the frequency of the discriminatory conduct;

(2) its severity; (3) whether it is physically threatening or

humiliating as opposed to a mere offensive utterance; (4) whether

it unreasonably interferes with an employee’s work performance,

id. at 23; and (5) whether the complained-of conduct undermines

the plaintiff’s workplace competence, Butler, 161 F.3d at 270.

Because Rogers’s harassment was nonsevere and nonpervasive, the

district court properly granted Westward’s motion for summary

judgment on Hockman’s hostile work environment claim.

To survive summary judgment, the harassment must be “so

severe and pervasive that it destroys a protected classmember’s

opportunity to succeed in the work place.” Shepherd, 168 F.3d at

874. The alleged conduct must be more than rude or offensive

comments, teasing, or isolated incidents. Id. Moreover,

“implicit or explicit in the sexual content [of the harassment]

13
[must be] the message that the plaintiff is incompetent because of

her sex.” Butler, 161 F.3d at 270. Hockman has not put forth

enough evidence to raise a fact issue with regard to this element.

First, the record is unclear as to how, exactly, Rogers

touched Hockman inappropriately. Hockman testified that the first

incident of harassment that she remembers occurred when Rogers

“would sort of brush up against [her].” Hockman admits, though,

that these brushings were neither severe nor pervasive. In fact,

at first she thought they were accidental, stating that “just as

quickly as it started, with a couple of exceptions——just as

quickly as it started, it ended . . . . And once it was over, it

was over.”

Second, we have found judgment as a matter of law appropriate

in cases with facts more egregious than those that Hockman alleges

here. In Shepherd v. Comptroller of Public Accounts, for example,

Shepherd testified that her coworker, Moore, told her, “your

elbows are the same color as your nipples,” and “you have big

thighs” while he simulated looking under her dress. 168 F.3d at

872. Moore stood over Shepherd’s desk on several occasions and

tried to look down her clothing. Id. He also “touched her arm on

several occasions, rubbing one of his hands from her shoulder down

to her wrist while standing beside her.” Id. Finally, on two

occasions, after coming in late to an office meeting, “Moore

patted his lap and remarked, ‘here’s your seat.’” Id.

14
 In Shepherd, we held that Moore’s comments were not as

frequent or severe as those we had previously found to alter the

workplace environment. Id. at 874–75. To illustrate how frequent

harassment must be to sustain a hostile work environment claim

under Title VII, we contrasted the facts of Shepherd with two

other Fifth Circuit cases in which the harassment was severe

enough for the plaintiffs to withstand the defendants’ motions for

judgment as a matter of law. Id. at 875.

In Farpella-Crosby v. Horizon Health Care, the defendant’s

comments were considered frequent and severe enough to sustain a

jury verdict for the plaintiff. 97 F.3d 803, 805 (5th Cir. 1996).

In that case, Defendant Blanco frequently made comments

“attributing Farpella-Crosby’s large number of children to a

proclivity to engage in sexual activity.” Id. Specifically,

Farpella-Crosby complained of the following behavior by Blanco:

Blanco repeatedly commented that he “knew what she
liked to do” because she had seven children and that she
“must not have a television.” At a baby shower held at
the facility for another employee, Blanco joked to the
group that Farpella-Crosby “[didn’t] know how to use
condoms.” Blanco also frequently inquired about
Farpella-Crosby’s sexual activity. He would often
question her . . . about where [she] had been the night
before (while off duty), whether [she] had taken men
home, and whether [she] “[had gotten] any.” Farpella-
Crosby . . . testified that Blanco made similar comments
two or three times a week. [She] testified that the
comments were so frequent that she could not possibly
remember each instance. Blanco threatened Farpella-
Crosby with her job on numerous occassions when she
asked him to stop making these comments.
On one occasion, after Farpella-Crosby had eaten
lunch in her office with a boyfriend, Blanco said that

15
 “when you open the door [to the office], the smell of
fish just hits you in the face. You shouldn’t be doing
that kind of think at work.” . . . Blanco essentially
admitted that he did question Farpella-Crosby about her
personal life, but claimed that he did so because he
believed the lack of sleep resulting from sexual
activity could affect her work performance.

Id. (last set of brackets in original). On these facts, we held

that “there is substantial evidence from which the jury could have

concluded that Blanco’s comments and questions were sufficiently

severe and pervasive as to alter the conditions of [Farpella-

Crosby’s] employment and create an abusive working environment.”

Id. at 806.

The harassment alleged by the plaintiff in Waltman v.

International Paper Company, 875 F.2d 468 (5th Cir. 1989), was

worse. There, we reversed summary judgment for the defendant on

the following facts: One of the defendant’s employees several

times broadcast obscenities directed at Waltman over the public

address system. Id. at 470. After that incident, “other

employees began making suggestive comments to Waltman.” Id. at

470–71. Waltman’s supervisor urged her to have sex with a

coworker. Id. at 71. On several occasions, he also “pinched her

buttocks with pliers and tried to put his hands in her back

pockets.” Id. Her supervisor and coworkers constantly made such

remarks as “I would like a piece of that” (referring to Waltman).

Id.

Over the course of about three years, Waltman received over

16
thirty pornographic notes in her locker. Id. “Sexually explicit

pictures and graffiti were drawn on the walls of the powerhouse,

on the restroom walls and on the elevator.” Id. Some of these

drawings were directed at Waltman.2 Waltman also testified that

many of the men would leave their lockers open and that the

lockers contained pornographic pictures and used tampons. Id. at

471 & n.1. Waltman’s supervisor testifed that the walls of the

work space contained drawings of naked men and women. Id. at 471.

On one occasion, one employee told another that “Waltman was

a whore and that she would get hurt if she did not keep her mouth

shut.” Id. On another occasion, Waltman’s coworker told her that

he “would cut off her breast and shove it down her throat.” Id.

That same coworker later “dangled Waltman over a stairwell, more

than thirty feet from the floor.” Id. On other occasions,

Waltman’s coworkers grabbed her breasts and thighs. Id.

Waltman testified that eighty percent of the men in her work

place had made sexual comments to her at some point, and a week

did not go by without such comments being made. Id. On these

facts, we held that Waltman had raised a fact issue regarding the

existence of a hostile work environment at her work place. Id. at

478.

The Supreme Court has repeatedly stated that “simple teasing,

2
For an explicit description of the graffiti, see Waltman,
875 F.2d at 471 n.2.

17
offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the ‘terms

and conditions of employment.’” Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998) (citation omitted)(citing Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).

Therefore, contrasting the facts in Shepherd to those in Farpella-

Crosby and Waltman, we held that Moore’s comments were “boorish

and offensive,” but not severe. 168 F.3d at 874. Rather, “each

comment made by Moore [was] the equivalent of a mere utterance of

an epithet that engenders offensive feelings,” but did not suffice

to survive summary judgment. Id. (citing Harris, 510 U.S. at

21–22). In short, Moore’s comments were not in the same league as

that behavior for which courts afford relief under Title VII. Id.

at 874–75.

Here, Hockman claims that in the approximate year and a half

that she worked for Westward, Rogers harassed her in the following

ways: (1) he once made a remark to Hockman about another

employee’s body, (2) he once slapped her on the behind with a

newspaper, (3) he “grabbed or brushed” against Hockman’s breasts

and behind, (4) he once held her cheeks and tried to kiss her, (5)

he asked Hockman to come to the office early so that they could be

alone, and (6) he once stood in the door of the bathroom while she

was washing her hands. This conduct is perhaps even less

egregious than that alleged in Shepherd. Cf. Shepherd, 168 F.3d

18
at 872 (describing the harassment which included Moore remarking

that “[Shepherd’s] elbows [were] the same color as [her] nipples,”

commenting on the size of Shepherd’s thighs while pretending to

look under her desk, and attempting to look down Shepherd’s

clothing). At best, Hockman’s allegations are on the same plane

as those in Shepherd. Shepherd’s allegations were insufficient in

that case, and Hockman’s are insufficient here.

Rogers’s remarks to Hockman about Ledesma’s body and requests

to be alone with Hockman are offhand comments which are boorish

and offensive, but not severe. Similarly, the newspaper slap

amounts to “simple teasing,” which “will not amount to

discriminatory changes in the ‘terms and conditions of

employment.’” Faragher, 524 U.S. at 788. The attempted kiss and

bathroom incident were isolated incidents which were not serious.

See id.

The “grabbings” or “brushings” against Hockman’s breasts or

behind, by her own account, were also not severe. Hockman did not

even estimate how many times this conduct occurred.3 Cf. Waltman,

875 F.2d at 471 (“Waltman estimated that eighty percent of the men

3
During Hockman’s deposition, defense counsel asked her how
many times the “grabbings” or “brushings” had occurred, and
Hockman responded: “[A]ll I can say is, I know that I would
remember specific incidents if it was just two or three or six
maybe. But I don’t.” Defense counsel followed up on the
question, asking Hockman if she could at least estimate how many
times Rogers touched her, to which Hockman responded, “I——I
just——I don’t know. I can’t give you anything.”

19
[at work] made sexually suggestive comments to her,” and

“testified that a week did not go by without a co-worker directing

a sexual comment at her.”); Farpella-Crosby, 97 F.3d at 805

(describing conduct directed at the plaintiff “two or three times

a week,” “repeatedly,” “often,” and on “numerous occasions”).

The conduct described by Hockman is simply not in the same

league as that at issue in the Farpella-Crosby and Waltman cases.

It is similar to that alleged in Shepherd, and we affirmed summary

judgment for the defendant in that case. 168 F.3d at 872. As a

matter of law, the conduct described by Hockman was not so severe

and pervasive as to affect the terms, conditions, or privileges of

her employment. The district court properly granted summary

judgment for Westward on Hockman’s hostile work environment claim.

2. Whether Westward Failed to Take Prompt Remedial
Action

Even if Rogers’s conduct did affect a term, condition, or

privilege of Hockman’s employment, she still cannot succeed on her

hostile work environment claim. There must be evidence that

Westward failed to take prompt remedial action upon learning of

the alleged harassment. Jones, 793 F.2d at 719–20. To the

contrary, Westward took prompt remedial action as a matter of law,

because Hockman unreasonably failed to take advantage of

corrective opportunities provided by Westward.

“When a company, once informed of allegations of sexual

harassment, takes prompt remedial action to protect the claimant,

20
the company may avoid Title VII liability.” Nash v. Electrospace

Sys., Inc., 9 F.3d 401, 402 (5th Cir. 1993). “‘Prompt remedial

action’ must be ‘reasonably calculated’ to end the harassment.”

Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606,

615 (5th Cir. 1999) (quoting Jones, 793 F.2d at 719–20). What

constitutes prompt remedial action depends on the facts of the

case; “not every response by an employer will be sufficient to

discharge its legal duty.” Id. at 615 (quoting Waltman, 875 F.2d

at 479). “Rather, the employer may be liable despite having taken

remedial steps if the plaintiff can establish that the employer’s

response was not ‘reasonably calculated’ to halt the harassment.”

Id. at 615–16.

We have often found that an employer took prompt remedial

action as a matter of law. Id. at 616 (citing Hirras v. Nat’l

R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir. 1996) (listing

Waymire v. Harris County, 86 F.3d 424, 428 (5th Cir. 1996); Carmon

v. Lubrizol Corp., 17 F.3d 791, 794–95 (5th Cir. 1994); Dornhecker

v. Malibu Grand Prix Corp., 828 F.2d 307, 309–10 (5th Cir. 1987)).

One factor we have found dispositive is whether the plaintiff

reasonably took advantage of corrective opportunities provided by

the employer. See Woods v. Delta Beverage Group, Inc., 274 F.3d

295, 300 n.3 (5th Cir. 2001). The district court granted summary

judgment on the failure-to-take-prompt-remedial-measures factor

for this very reason; Hockman unreasonably failed to bring her

21
complaint to a higher-echelon employee (Fisher) though she was

dissatisfied with the way French handled the situation. Hockman’s

claims that she was told “not to go above French’s head,” and that

French directed her to an outdated harassment policy for another

company, even if true, do not overcome the undisputed facts that:

(1) Hockman received the Westward employee handbook containing the

company’s antiharrassment policy; (2)the policy provides that if

the employee does not feel that her allegation is being handled

satisfactorily by his or her supervisor, then she should report

the incident directly to the Director of Human Resources; (3) she

acknowledged her receipt of the handbook and understanding of its

provisions with her signature; and (4) despite her awareness,

there is no evidence that Hockman availed herself of any of the

company’s provisions after speaking to French, several months

after the alleged harassment began. The district court held that

whether Hockman subjectively felt that she could not “go over

French’s head” is immaterial to the fact that the policy she

acknowledged directed her to do just that. This analysis is in

accord with Woods v. Delta Beverage Group, where we applied an

objective standard. 274 F.3d at 301 (“A reasonable woman would

have felt compelled to report Eddy’s alleged post-July 7

harassment to her supervisors. Therefore, [summary judgment was

appropriate.]”). We therefore affirm summary judgment for Westward

on Hockman’s sexual harassment claim; Hockman cannot prove that

22
Westward failed to take prompt remedial action where she

unreasonably failed to take advantage of corrective opportunities

provided by Westward.

B. Retaliation

Hockman next claims that Westward retaliated against her for

filing her EEOC complaint. Title VII provides that “[i]t shall be

an unlawful employment practice for an employer to discriminate

against any of his employees . . . because he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42

U.S.C. § 2000e-3(a). We analyze retaliation claims under the

McDonnell Douglas burden-shifting framework. See Chaney v. New

Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir.

1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802–05 (1973)).

To make out a prima facie case of retaliation, Hockman must

provide evidence of three things: (1) she engaged in protected

conduct, (2) she was thereafter subjected to an adverse employment

action, and (3) the adverse employment action was taken in

response to her protected conduct. Chaney, 179 F.3d at 167. If

Hockman succeeds, the burden then shifts to Westward to articulate

a legitimate, nonretaliatory reason for the adverse employment

action. Id. If Westward carries this burden, then Hockman must

present evidence showing that Westward’s proffered rationale was

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pretextual, and that engaging in the protected activity was the

but-for cause of the adverse employment action.4 Id.

The filing of an EEOC complaint is clearly a protected

activity within the meaning of the statute. Walker v. Thompson,

214 F.3d 615, 629 (5th Cir. 2000) (citing Dollis v. Rubin, 77 F.3d

777, 781 (5th Cir. 1995)). Hockman has therefore satisfied the

first element of her prima facie case.

Next, Hockman must present evidence showing that Westward

subjected her to an adverse employment action. In determining

whether a defendant’s action constitutes an adverse employment

action, “we are concerned solely with ultimate employment

decisions.” Id. (citing Webb, 139 F.3d at 540). “[U]ltimate

employment decisions include acts ‘such as hiring, granting leave,

discharging, promoting, and compensating.’” Id. (quoting Dollis,

77 F.3d at 782); Green v. Adm’rs of the Tulane Educ. Fund, 284

F.3d 642, 657 (5th Cir. 2002). We have previously found that the

following actions on the part of employers did not constitute

ultimate employment decisions: refusing to consider the plaintiff

for a promotion, refusing to allow her to attend a training

conference, and criticizing her work to government vendors,

Dollis, 77 F.3d at 779–80; the verbal threat of being fired,

4
Hockman has not alleged that Westward acted with mixed
motives. Cf. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409,
414–15 (2003) (explaining the difference between pretext and
mixed-motive retaliation claims).

24
reprimanding the plaintiff for not being at her assigned work

station, a missed pay increase, and being placed on “final

warning,” Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th

Cir. 1997); changing locks, restructuring office procedures, and

clarifying job duties, Green, 284 F.3d at 657–58; and a visit to

the plaintiff’s home by two of her supervisors, one of whom was

included in the EEOC charge, to instruct her to report to the

company’s medical center if her claimed illness was work related,

Mattern, 104 F.3d at 705. By contrast, we have found the denial

of paid or unpaid leave to constitute an ultimate employment

decision, Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d

512, 521–22 (5th Cir. 2001), and have suggested that an unwanted

reassignment may also constitute an ultimate employment decision,

Walker, 214 F.3d at 629.

In this case, Hockman claims that Westward retaliated against

her in the following ways: (1) transferring her to the Edgewood

Enterprise, (2) placing her under the supervision of Wilbur

Callaway, (3) treating her with hostility, (4) instituting a

“baseless” racial harassment investigation against her, (5)

issuing her a directive “not to be sick on Tuesdays,” and (6)

requiring detailed documentation of any future doctors’

appointments. In light of the precedent discussed above, the only

allegation made by Hockman which might conceivably be classified

as an adverse employment action is her transfer to the Edgewood

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Enterprise. The other actions are not ultimate employment

decisions and therefore do not qualify as adverse employment

actions.

Hockman’s transfer to the Edgewood Enterprise likewise fails

to constitute an adverse employment action, however, because it

was a purely lateral move. A purely lateral transfer cannot

constitute an adverse employment action. Burger v. Central Apt.

Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999). We have

previously held a transfer to be purely lateral where the new

position had “the same job title, benefits, duties, and

responsibilities” as the old position. Id. As the editor of the

Edgewood Enterprise, Hockman retained the same pay, duties, and

benefits; was reimbursed for her mileage from Grand Saline to

Edgewood; and although the Edgewood facility was temporarily

filthy, any filth was cleaned up within a week or two of Hockman’s

arrival. Therefore, this was a purely lateral transfer, and

Hockman has failed to make out a prima facie case of retaliation.

Accordingly, the district court properly granted Westward’s motion

for summary judgment.

C. Constructive Discharge

Finally, Hockman claims that she was constructively

discharged from Westward. To survive summary judgment on a

constructive discharge claim, the plaintiff must provide evidence

that working conditions were “so intolerable that a reasonable

26
employee in her position would [have felt] compelled to resign.”

Webb v. Cardiothoracic Surgery Assoc. of N. Tex., 139 F.3d 532,

539 (5th Cir. 1998). Mere harassment, alone, is insufficient;

rather, the plaintiff must show “aggravating factors” to justify

departure. See Barrow v. New Orleans Steamship Ass’n, 10 F.3d

292, 297 (5th Cir. 1994). Such factors include: (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; or (7) offers of early retirement or continued

employment on terms less favorable than the employee’s former

status. Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.

2000). Ultimately, to succeed on a constructive discharge claim,

the plaintiff must show a greater degree of harassment than is

required for a hostile work environment claim. Benningfield v.

City of Houston, 157 F.3d 369, 378 (5th Cir. 1998).

Hockman’s constructive discharge claim fails for three

reasons. First, Hockman reiterates the same facts that she

alleges constituted harassment by Rogers and retaliation by

Westward; she does not allege facts which provide the aggravation

required to support a claim of constructive discharge. Second,

Hockman alleges that Harvill overheard Callaway say that he would

get a bonus from Westward if “he ran Harvill off.” Hockman claims

27
that it is reasonable to assume this deal applied to her as well.

Yet Hockman cannot rely on such speculation to survive summary

judgment. In Forsyth v. Barr, we made clear that summary judgment

is appropriate where the nonmoving party “rests merely upon

conclusory allegations, improbable inferences, and unsupported

speculation.” 19 F.3d 1527, 1533 (5th Cir. 1994). That is what

Hockman has done here.

Finally, Westward’s prompt remedial measures are fatal to

Hockman’s constructive discharge claim. In Dornhecker v. Malibu

Grand Prix Corporation, the plaintiff resigned one day after

reporting the harassment to her company’s president. 828 F.2d

307, 308–09 (5th Cir. 1987). Her employer, however, had assured

the plaintiff that she would never have to work with her harasser

again. Id. at 308. We reversed a judgment for the plaintiff

because her resignation had been unreasonable. Id. at 310. In

doing so, we stated that the plaintiff had not given her employer

a fair opportunity to remedy the situation. Id.

Here, upon learning of Hockman’s complaint, Westward

immediately transferred her to Edgewood, separating her from

Rogers. Hockman does not allege that she was sexually harassed

after being transferred. Westward’s prompt remedial action

therefore precludes Hockman’s constructive discharge claim. The

district court properly granted Westward’s motion for summary

judgment.

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V. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court as to all claims.

AFFIRMED.

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