McDaniel v. Shell Oil Co.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 26, 2009

No. 09-20048 Charles R. Fulbruge III
Clerk

EDNA JEAN MCDANIEL

Plaintiff-Appellant
v.

SHELL OIL CO

Defendant-Appellee

Appeal from the United States District Court
for the Southern District of Texas
USDC 4:07-CV-808

Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*

At issue is the summary judgment awarded Shell Oil against Edna Jean
McDaniel’s claims of sexual harassment and retaliation under Title VII of the
1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Texas Commission on
Human Rights Act, Tex. Lab. Code § 21.001 et seq. (Vernon 2008); and
intentional infliction of emotional distress (IIED) under Texas state law.
AFFIRMED.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
 No. 09-20048

I.
From 2003 to 2005, McDaniel’s manager at Shell allegedly made sexually
explicit comments to her. McDaniel did not report the alleged harassment to
Shell’s human resources department until 3 December 2005; only two days later,
she filed a charge with the Equal Employment Opportunity Commission.
In September 2006 McDaniel was laterally transferred, as were other
employees in her work group. McDaniel claims her new supervisor retaliated
against her by increasing her workload, failing to support her, and giving her a
negative performance evaluation in July 2007.
McDaniel filed her claims of sexual harassment, retaliation, and IIED in
state court in 2007; the action was removed to district court. It granted
summary judgment to Shell and dismissed the action, holding, inter alia: Shell
successfully proved its Faragher/Ellerth affirmative defense to the sexual-
harassment claim, McDaniel v. Shell Oil Co., No. H-07-808, slip op. at 46 (S.D.
Tex. 22 Dec. 2008); McDaniel failed to provide evidence showing a causal
connection between her protected conduct and the alleged retaliatory acts, id. at
59; and, McDaniel’s IIED claim failed because it was duplicative of the statutory
remedies she sought, id. at 60.
II.
McDaniel raises three issues. She contends a genuine issue of material
fact exists on whether she was aware of Shell’s sexual-harassment policy,
therefore precluding Shell’s successful assertion of the Faragher/Ellerth
defense. McDaniel next asserts she did not need to prove a causal connection
between her protected activity and the alleged adverse employment actions to
prevail on her retaliation claim; but, even if she did, the time period between her
filing a charge and the alleged adverse employment actions was short enough for
a jury to infer causation. Finally, McDaniel maintains her IIED claim is not
barred because our court has allowed such claims where others were asserted.

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A summary judgment is reviewed de novo, applying the same standards
as the district court. E.g., Kennedy v. Plan Adm'r for DuPont Sav. & Inv. Plan,
497 F.3d 426, 428 (5th Cir. 2007). “Such judgment is proper when ‘there is no
genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.’” Id. (quoting F ED. R. C IV. P. 56(c)); see also, Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
A.
Under the Supreme Court’s Faragher and Ellerth decisions, an employer
has an affirmative defense to a hostile work environment sexual-harassment
claim if (1) “the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior”, and (2) the employee “unreasonably
failed to take advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise”. Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 778
(1998).
Concerning Shell’s policies regarding sexual harassment, McDaniel’s
claims fail. For example, McDaniel stated by affidavit: Shell failed to post
notices of those policies on the bulletin board or the walls in her work area; and,
she was unaware of those policies until after December 2005. We agree with the
district court that, in the light of the evidence offered by Shell, this is insufficient
to create a genuine issue of material fact. See, e.g., Anderson v. Liberty Lobby,
477 U.S. 242, 252 (1986).
B.
To establish a prima facie case of retaliation, McDaniel was required to
show: (1) she engaged in protected activity, (2) an adverse employment action
occurred, and (3) a causal connection existed between the protected activity and
the adverse employment action. E.g., McCoy v. City of Shreveport, 492 F.3d 551,
556–57 (5th Cir. 2007).

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McDaniel concedes she has no evidence of a causal connection, other than
the temporal proximity between the protected activity and alleged adverse
employment actions. The “temporal proximity” to which she refers, however, is
insufficient to create a genuine issue of material fact for this element. See, e.g.,
DeHart v. Baker Hughes Oilfield Operations, Inc., 214 F. App’x 437, 443 (5th Cir.
2007) (unpublished) (collecting cases on “temporal proximity”). In addition,
McDaniel’s contention that she need not prove a causal connection is foreclosed
by our precedent. See McCoy, 492 F.3d at 556–57.
C.
Finally, McDaniel contends the district court erred when it held her IIED
claim was barred under Texas law. Having failed to raise this point in district
court in opposition to summary judgment, McDaniel has waived this issue. See
Sw. Bell Tel. v. City of Houston, 529 F.3d 257, 263 (5th Cir. 2008).
III.
For the foregoing reasons, the judgment is AFFIRMED.

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