McCullough v. Kirkum

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 20, 2006

Charles R. Fulbruge III
No. 06-30481 Clerk
Summary Calendar

LECIA P. MCCULLOUGH, KIMBERLY G. DARLING, and PAULA J. DAVENPORT,

Plaintiffs - Appellants
versus

KEVIN KIRKUM, SERGEANT, POLICE DEPARTMENT OF CITY OF LAKE CHARLES,
CITY OF LAKE CHARLES, and DONALD DIXON, POLICE CHIEF,

Defendants - Appellees

Appeal from the United States District Court
for the Western District of Louisiana
(No. 2:04-CV-2579)

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants, Lecia P. McCullough, Kimberly G.

Darling, and Paula J. Davenport, appeal the district court’s order

granting summary judgment in favor of Defendants-Appellees, Kevin

Kirkum, the Police Department City of Lake Charles (the

“Department”), the City of Lake Charles, and Donald Dixon. We

affirm.

I. Facts and Proceedings

*
Under 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opinion should not be published and is not precedent except under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.
 Plaintiffs-Appellants, three female employees of the

Department, contend that they were sexually harassed by Kirkum,

another employee of the Department. Specifically, Plaintiffs-

Appellants allege that on numerous occasions Kirkum pressed his

body against theirs, propositioned them, and commented on their

appearance or attire.

On May 12, 2003, Plaintiffs-Appellants filed a formal

complaint with the Department. After conducting an investigation,

the Department’s internal affairs division sustained the complaint

on May 23, 2003. As a result, Kirkum was suspended without pay for

five days, transferred from the detective division, ordered to

attend counseling, and prohibited from communicating with

Plaintiffs-Appellants unless through a supervisor. Prior to the

May 2003 complaint, no formal complaint had been made against

Kirkum.

In December of 2004, Plaintiffs brought this suit, asserting

claims of sexual harassment, hostile work environment, and

retaliation against Defendants-Appellees under federal and state

law. Their allegations included incidents addressed in their May

2003 departmental complaint, as well as incidents that had occurred

in 1998. Defendants-Appellees moved for summary judgment and to

dismiss; Plaintiffs-Appellants moved for partial summary judgment.

The district court converted all motions into motions for summary

judgment.

2
 In March 2006, the district court granted summary judgment to

Defendants-Appellees on all issues. With respect to the

allegations of harassment in 2003, the court held that the

Department took prompt remedial action. With respect to

allegations of incidents that had occurred in 1998, the court held

them to be insufficient to support a hostile work environment

claim. It further held that, even if they were sufficient to

establish a hostile work environment, Plaintiffs-Appellants had

failed to take advantage of corrective opportunities provided by

the employer. Finally, the court dismissed Plaintiffs-Appellants’

retaliation claim, holding that the purportedly retaliatory acts

were not adverse employment actions.1

Plaintiffs-Appellants timely appealed.

II. ANALYSIS

A. Standard of Review

The district court’s decision to grant summary judgment is

reviewed de novo.2 A motion for summary judgment should be granted

1
The district court also granted motions for summary
judgment dismissing Plaintiffs-Appellants’ claims against the
Department and the individual defendants. It further dismissed
Plaintiffs-Appellants’ § 1983 and state law claims as untimely.
Plaintiffs-Appellants do not appeal these holdings.
2
American Int’l Specialty Lines Ins. Co. v. Canal Indem.
Co., 352 F.3d 254, 260 (5th Cir. 2003).

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only when there is no genuine issue of material fact.3 In

determining whether there is a genuine issue of material fact, we

view all facts and draw all inferences therefrom in favor of the

non-moving party.4

B. Hostile Work Environment

To survive a motion for summary judgment, a plaintiff alleging

a hostile work environment claim based on sexual harassment by a

co-worker5 must prove five elements:

(1) the employee belonged to a protected class; (2) the
employee was subject[ed] to unwelcome sexual harassment;
(3) the harassment was based on sex; (4) the harassment
affected a “term, condition, or privilege” of employment;
and (5) the employer knew or should have known of the

3
Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d
233, 235 (5th Cir. 2003).
4
Id.
5
Different standards apply to sexual harassment by a
supervisor than by a co-worker. See Faragher v. City of Boca
Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth,
524 U.S. 742 (1998); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d
405, 409-11 (5th Cir. 2002) (applying Faragher/Ellerth test).
Courts have also adopted different tests for determining whether
an employee is a supervisor or a co-worker. Compare Parkins v.
Civ. Constr. of Ill., 163 F.3d 1027, 1034 (7th Cir. 1998)
(individual considered supervisor if he has “the authority to
affect the terms and conditions of the victim’s employment”) with
Mack v. Otis Elevator Co., 326 F.3d 116, 126-27 (2d Cir. 2003)
(rejecting Parkins’ test and holding that individual may be
considered a supervisor if he has authority to direct employee’s
day-to-day work activities). Under either approach, Kirkum
cannot be considered a supervisor under Title VII, as there is no
evidence that he had control over either Plaintiffs-Appellants’
daily work activities or the tangible conditions of their
employment.

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 harassment and failed to take prompt remedial action.6

Plaintiffs-Appellants contend that the district court erred in

finding that no material issue of fact existed as to whether a

hostile work environment existed. They assert that Plaintiff-

Appellant Davenport’s testimony that Kirkum continued to harass her

after she complained to her supervisors in 1998 demonstrates that

the employer was aware of sexual harassment and failed to act.

This argument fails.

First, the conduct at issue —— various comments made in 1998

by Kirkum about Davenport’s appearance —— was not “sufficiently

severe or pervasive to alter the conditions of [her] employment and

create an abusive working environment.”7 As the district court

noted, Davenport herself described Kirkum’s behavior as “a little

problem.”

Second, even if we were to assume arguendo that the conduct

was sufficiently severe or pervasive, Plaintiffs-Appellants have

failed to demonstrate that “the employer knew or should have known

of the harassment and failed to take prompt remedial action.”8

Although Davenport complained informally to her supervisors about

Kirkum’s conduct in 1998, she requested that no formal report be

6
Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298-
99 (5th Cir. 2001).
7
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(internal quotation marks omitted).
8
Woods, 274 F.3d at 298.

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made. Accordingly, her supervisors spoke with Kirkum about his

conduct. When the supervisors followed up with Davenport several

weeks later to ensure that Kirkum’s offensive conduct had ceased,

she informed them that it had.

Davenport testified that she later informed her supervisor

that “he’s just not stopping.” Davenport never formally reported

any subsequent conduct, however, even though she was aware of the

Department’s sexual harassment policy and the mechanism provided

for filing a complaint. A plaintiff alleging sexual harassment by

a co-worker has an obligation “to reasonably take advantage of the

corrective opportunities provided by her employer.”9 Davenport

testified that she did not file a complaint because “she did what

she was told.” Under the facts of this case, Davenport’s failure

to file a formal complaint was not reasonable, as there is no

reason to believe that the Department would not have responded

adequately to the complaint. Indeed, when Plaintiffs-Appellants

did formally report incidents in 2003, the Department immediately

began an investigation, which was completed in less than eleven

days after the filing of the complaint and resulted in Kirkum

receiving an unpaid suspension of five days.

The district court properly granted summary judgment to

Defendants-Appellees on Plaintiffs-Appellants’ hostile work

9
Id. at 300 n.3.

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environment claim.

C. Retaliation

Plaintiffs-Appellants also contend that the district court

erred in finding that there was no material issue of fact as to

their retaliation claim. Specifically, they assert that the

Supreme Court’s decision in Burlington Northern and Santa Fe

Railway Co. v. White,10 decided after the district court issued its

decision, alters the analysis of retaliation claims and, as applied

to their case, requires a denial of summary judgment on this claim.

Plaintiffs-Appellants are correct that the district court’s

characterization of retaliation law is outdated.11 In Burlington

Northern, the Supreme Court rejected the approach taken by several

circuits, including this one, that required plaintiffs to

demonstrate an “ultimate employment decision” to satisfy the

“adverse employment action” element of a retaliation claim.12

Instead, the Court clarified that the plaintiff must demonstrate

that the actions were the sort that “might well have dissuaded a

reasonable worker from making or supporting a charge of

10
__ U.S. __, 126 S. Ct. 2405 (June 22, 2006).
11
For purposes of this appeal, we need not address
whether or to what extent Burlington affects the analysis of the
“adverse employment action” prong of a plaintiff’s hostile work
environment claim.
12
Id. at 2414-15.

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discrimination.”13 These actions may include those that take place

outside of the workplace.14 Thus, the district court’s reliance on

caselaw requiring an “ultimate employment decision” became

inconsistent with Burlington Northern when it was rendered.

Despite this shift in analysis of retaliation claims, however,

it does not appear that Plaintiffs-Appellants would meet the more

relaxed standard set forth in Burlington Northern either. The

purported materially adverse actions cited by Plaintiffs-Appellants

consist of: relocation from one desk to another; vague comments by

unnamed employees;15 and transfers to different divisions as

requested by Plaintiffs-Appellants. These actions are not the sort

that would dissuade a reasonable employee from reporting

discrimination. Plaintiffs-Appellants also failed to demonstrate

any causal link between the allegedly retaliatory actions and their

participation in a protected activity, as they must for their

retaliation claim to survive summary judgment.16

For the foregoing reasons, the judgment of the district court

is

13
Id. at 2415 (quoting Rochon v. Gonzales, 438 F.3d 1211,
1219 (D.C. Cir. 2006)) (internal quotation marks omitted).
14
Id. at 2414.
15
For example, one plaintiff complained that a co-worker
accused her of appearing to be on drugs.
16
See Harvill v. Westward Commc’ns, LLC, 433 F.3d 428,
439 (5th Cir. 2005).

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AFFIRMED.

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