United States Court of Appeals,
Fifth Circuit.
No. 94-10859
Summary Calendar.
Patricia Louise ELLERT, Plaintiff-Appellant,
v.
UNIVERSITY OF TEXAS, AT DALLAS, Defendant-Appellee.
May 18, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before POLITZ, Chief Judge, DAVIS and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:
Patricia Louise Ellert appeals an adverse judgment dismissing
her sexual harassment suit against her former employer, the
University of Texas at Dallas. Finding no error, we affirm.
Background
In December 1988 the University of Texas at Dallas hired
Ellert as a secretary for its Dean of Graduate Studies. Her
relationship with the Dean initially was quite amicable.
In August 1989, while having lunch with the Dean, Ellert
claims that she felt compelled to drink a glass of wine and that on
the return to their vehicle the Dean drew uncomfortably close to
her while they were crossing the street. On the way back to the
University, they stopped at the Dean's home and while they were
conversing his wife entered the room. Ellert alleges that this
made her uncomfortable. Subsequent to this uncomplained-of
incident, the Dean neither touched Ellert again nor did he commit
1
any offensive act whatever; however, Ellert alleges that he was
"overly friendly and charming."
In March 1990 Ellert entered the Dean's office unannounced and
saw the Dean embracing a female assistant. Although neither the
Dean nor Ellert ever spoke of this event, Ellert claims that his
attitude toward her changed and that their relationship took a
marked turn for the worse. She began receiving more frequent
reprimands and in February 1991 she received a negative evaluation
from the Dean and a warning that she was under observation for
dismissal. On March 14, 1991 Ellert was terminated by the Dean,
allegedly for failing to prepare properly materials needed by the
Dean for presentation to his superiors. Ellert does not question
the inadequacy in the preparation of the materials but claims that
her error was blown out of proportion.
After satisfying administrative prerequisites, Ellert filed
suit against the University, alleging that she had been
discriminated against because of her refusal of the Dean's sexual
advances and for her knowledge of his indiscretions with his
assistant, all in violation of Title VII of the Civil Rights Act of
1964, as amended.1
The University moved for summary judgment, claiming, inter
alia, that Ellert's claims based on actions occurring before March
of 1990 were time-barred, and that the Dean's relationship with his
assistant did not create a hostile work environment. Although
Ellert conceded in her response that she was not making any claims
1
42 U.S.C. § 2000e, et seq.
2
based upon the Dean's behavior during that time, she maintained
that her claim was predicated not upon a hostile work environment
theory but, rather, upon a quid pro quo sexual harassment theory.
In support of this claim, Ellert alleged that her employment
conditions were adversely affected when the Dean finally realized
that she would be unreceptive to his repeated "subtle" advances
after her discovery of his secret relationship with his assistant;
alternatively, she argued that her conditions of employment were
adversely affected solely because of her discovery of the
indiscretion.
The district court granted the motion, citing Ellert's failure
to show the existence of quid pro quo sexual harassment and finding
that Ellert had not shown that she was subjected to any unwelcome
sexual harassment. The court rejected her theory that the Dean's
relationship with his assistant, when coupled with his "overly
friendly" behavior somehow indicated that he was attempting to
seduce her. Finally, the court rejected her claim that the
repercussions following her inadvertent discovery constituted
legitimate grounds for a claim of employment discrimination,
concluding that, even assuming Ellert's discharge was due to this
knowledge, this was a gender-neutral reason for termination outside
the protective scope of Title VII. Ellert timely appealed.
Analysis
Ellert maintains that the district court erred in ruling that
she failed to make a quid pro quo sexual harassment claim. A grant
of summary judgment is reviewed de novo under the same standard as
3
that applied by the district court.2 Summary judgment is required
when the evidence, viewed in the light most favorable to the
nonmoving party, presents no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Title VII bars discrimination in employment "against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's ... sex."3
Any employer requiring sexual favors from an employee as a quid pro
quo for bestowing job benefits upon that employee violates Title
VII.4 In order to show that she was the subject of quid pro quo
sexual harassment, Ellert must demonstrate:
—that she is a member of a protected group;
—that she was subject to unwelcome sexual harassment;
—that the complained-of harassment was based upon sex;
—that her reaction to the harassment affected tangible aspects
of the terms and conditions of her employment, with her
acceptance or rejection of the harassment being either an
express or implied condition to receipt of a benefit to or the
cause of a tangible adverse effect on the terms or conditions
of her employment; and, finally,
—respondeat superior.5
The ultimate issue in considering a summary judgment motion
2
Lindsey v. Prive Corp., 987 F.2d 324 (5th Cir.1993).
3
42 U.S.C. § 2000e-2(a)(1).
4
Jones v. Flagship International, 793 F.2d 714 (5th
Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d
1001 (1987).
5
Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190
(5th Cir.1991), cert. denied, 502 U.S. 1072, 112 S.Ct. 968, 117
L.Ed.2d 133 (1992).
4
in a case of this type is whether the evidence of unlawful
discrimination, or lack thereof, is so compelling that the moving
party should prevail as a matter of law.6 In evaluating the
propriety of summary judgment on Ellert's discrimination claim,
"the question before us is whether the evidence in the summary
judgment record establishes, as a matter of law, that [Ellert] was
not the victim of discrimination by [her] employer."7
The evidence, when viewed in the light most favorable to
Ellert, fails to establish any sexual harassment by the Dean that
is not time-barred.8 After the August 1989 incident he did not
discuss sexual matters, cause any physical contact, or make any
threats or promises related to her rejection or acceptance of his
affections. Further, the gravamen of Ellert's claim is that her
association with the Dean changed as a result of her discovery of
his relationship with his assistant and not as a result of
rejection of his advances. The summary judgment evidence of the
claimed unlawful discrimination toward Ellert via her claim of quid
pro quo sexual harassment does not pass muster and the dismissal of
her Title VII claim was appropriate.
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
7
Armstrong v. City of Dallas, 997 F.2d 62, 66 (5th
Cir.1993).
8
The one incident involving arguably sexual advances by the
Dean is clearly time-barred. 42 U.S.C. § 2000e-5(d) requires
that in order to preserve a claim, a plaintiff must file a
complaint with the EEOC within 180 days of the allegedly
discriminatory employment action. As Ellert failed to file her
complaint until September 1991, any claim relating to the August
1989 incident, if it had any validity, has prescribed.
5
Ellert, however, insists that she personally does not have to
be the subject of unwelcome quid pro quo sexual harassment in order
to recover under Title VII, claiming that she need only link her
discharge to the Dean's unwelcome sexual harassment of his
assistant. She contends that she has set forth an actionable Title
VII claim by showing that the harassment gave rise to conditions
that led to his decision to terminate her, specifically her
discovery of the harassment of the assistant.
Ellert invites our attention to authority for the proposition
that a Title VII claim can be based upon a supervisor's voluntary
sexual relations with a subordinate.9 This proposition has not
been widely accepted.10 Most circuits refuse to extend Title VII
to employment decisions that are not directly related to
impermissible gender-based distinctions.11 In those cases in which
9
29 C.F.R. § 1604.11(g) provides that
[w]here employment opportunities or benefits are
granted because of an individual's submission to the
employer's sexual advances or requests for sexual
favors, the employer may be held liable for unlawful
sex discrimination against other persons who were
qualified for but denied that employment opportunity or
benefit.
10
See DeCintio v. Westchester County Medical Center, 807
F.2d 304, 306-307 (2d Cir.1986), cert. denied, 484 U.S. 825, 108
S.Ct. 89, 98 L.Ed.2d 50 (1987) ("The proscribed differentiation
under Title VII ... must be a distinction based on a person's
sex, not on his or her sexual affiliations."); Candelore v.
Clark County Sanitation District, 752 F.Supp. 956, 960
(D.Nev.1990), aff'd, 975 F.2d 588 (9th Cir.1992) ("[P]referential
treatment of a paramour, while perhaps unfair, is not
discrimination on the basis of sex in violation of Title
VII....").
11
See Smith v. Liberty Mutual Ins. Co., 569 F.2d 325 (5th
Cir.1978); Ulane v. Eastern Airlines, 742 F.2d 1081 (7th
6
Title VII was extended to allow recovery based upon a supervisor's
voluntary sexual relationship with a subordinate, the claims
usually were premised upon the paramour receiving some form of
preferential treatment over the claimant.12
In the instant case, however, Ellert does not allege that the
assistant received preferential treatment over her because of the
existence of a sexual relationship with the Dean; rather, she
asserts that she was discharged because of her knowledge of what
she alone characterizes as an illegal and unwelcome relationship.
Even if her knowledge of the affair was the true animus behind the
discharge decision, it was a motivation that did not rely upon her
gender and, as such, it was not within the ambit of Title VII's
protections.
Accordingly, the judgment of the district court is AFFIRMED.
Cir.1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85
L.Ed.2d 304 (1985); Sommers v. Budget Marketing, Inc., 667 F.2d
748 (8th Cir.1982); DeSantis v. Pacific Telephone & Telegraph
Co., 608 F.2d 327 (9th Cir.1979).
12
See King v. Palmer, 778 F.2d 878 (D.C.Cir.1985) (implicit
recognition of Title VII action alleging discrimination due to
favored treatment of paramour); Toscano v. Nimmo, 570 F.Supp.
1197 (D.Del.1983) (supervisor's grant of promotion to lover over
plaintiff sufficient to predicate liability under Title VII).
7