IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50009
Summary Calendar
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DEBRA LANCASTER,
Plaintiff-Appellant,
VERSUS
H. E. BUTT GROCERY CO., INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(M0-95-CV-56)
_________________________
July 31, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Debra Lancaster sued H.E. Butt Grocery Co., Inc. (“HEB”),
alleging sexual harassment and constructive discharge in violation
of title VII. Both parties consented to trial by a magistrate
judge. After extensive discovery, the magistrate judge granted
HEB’s motion for summary judgment, finding that the facts alleged
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published except under the limited circumstances set forth
in 5TH CIR. R. 47.5.4.
failed to demonstrate a hostile workplace environment or the
existence of constructive discharge. We affirm summary judgment on
the constructive discharge claim and reverse summary judgment on
the hostile environment claim and remand.
I.
Lancaster was employed by HEB as the manager of the floral
department of HEB’s Big Spring, Texas, store beginning Septem-
ber 15, 1992. During the three months of her employment,1 Tom
Land, the store manager, and other supervisors engaged in the
conduct that gave rise to this suit.
The alleged hostile behavior falls into two categories:
neutral comments and sex-based comments. The neutral remarks and
incidents were all related to the supervisors’ management of the
floral department. The sex-based remarks took the form of sexually
derogatory comments. Lancaster’s summary judgment evidence relies
on both types of evidence to demonstrate the existence of a
sexually hostile workplace environment, intermingling incidents
concerning the floral department with the alleged sexual remarks.
The summary judgment evidence, when viewed in the light most
favorable to Lancaster, demonstrates that the HEB management
treated its employees, and in particular its floral employees, with
little respect. Lancaster, when asked to describe the hostility
1
Lancaster quit on December 18, 1992.
2
she faced at HEB, testified that she considered the ridiculing of
the floral department and its personnel as part of that hostility.
Lancaster’s problems with HEB management are detailed in her
own affidavit and that of Gail McConnell. McConnell’s affidavit
demonstrates that Lancaster took great pride in the floral
department and was upset whenever Land would interfere or make
changes in the department.
McConnell describes two incidents that demonstrate the
problems Lancaster was having. At the grand opening of the store,
Lancaster had an argument with Joe Villareal and John Contreras
when the two supervisors tore down a floral arrangement to make
room for a greeting card display. Another time, McConnell recalls
that Lancaster was visibly upset when Land removed a ribbon rack
from the floral department because, according to him, it “look
[sic] like a piece of shit!!!!”
Lancaster’s own affidavit prominently lists the state of the
floral department as one of the complained-of conditions. The
department’s problems included a lack of shelving space and
staffing, a cold working environment, a low priority for display
space, and an utter disregard for employees’ marketing ideas.
Lancaster complains that Land did nothing to alleviate these
problems. The summary judgment evidence also demonstrates that
Villareal and Contreras consistently treated employees poorly,
regularly throwing tantrums and purposefully (almost sadistically)
making work conditions stressful.
3
It is in this context that the sexually derogatory remarks fit
into Lancaster’s hostile environment claim. As Lancaster describes
it, Land once commented that a back belt issued by HEB made her
breasts look larger. Contreras also made comments to other women
about the back-support belts. Sometime later, Lancaster alleges
that Land’s attitude toward her changed because she instructed one
of her assistants not to leave the store for coffee with him.
Throughout this period, Land made between ten and twelve sexually
derogatory comments, ranging from “dumb blond” or “dumb blond
women” to “dumb blond women don’t have what it takes for this
business” and “what can you expect, you are a dumb blond woman.”
Lancaster also alleges that Land invited her, on two
occasions, to the Ponderosa Inn2 for coffee so that the two could
discuss the floral department. Ricky Ornelas also asked Lancaster
to go out for a drink after work. The first time, he said, “Me and
the boys are going down to the Brewery for a beer after work. Do
you want to meet us down there, Debra?” The second time he asked
Lancaster to go, she asked whether his wife was accompanying him.
He angrily replied “no.” Lancaster also alleges that Land once
said “I had been working on Dewey Slape,”3 and she found the remark
to be offensive.
Lancaster relies on three specific incidents as examples of
2
According to Lancaster, the Ponderosa is a sleazy motel where people meet
for affairs.
3
Dewey Slape is a refrigeration contractor.
4
the type of harassment she faced. The first occurred when she
alerted Land to a refrigerator problem in the floral department.
Land told Lancaster, “I did not think this came from a woman.
Dewey already told me this. This came from a man.” The second
incident occurred at a store manager’s meeting at which Land
commented, “It is hard to believe a blond woman like you would
probably write these things down in your book.” The third incident
occurred when a shipment of flowers was improperly stored,
resulting in $2,000 of damaged flowers. Land laughed and said,
“$2,000 lost on produce. That is what you women deserve.”
II.
This court reviews a grant of summary judgment de novo. Hanks
v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th
Cir. 1992). 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 moving party is entitled
to a judgment as a matter of law." FED. R. CIV. P. 56(c). The
party seeking summary judgment carries the burden of demonstrating
that there is an absence of evidence to support the non-moving
party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
After a proper motion for summary judgment is made, the non-movant
must set forth specific facts showing that there is a genuine issue
5
for trial. Hanks, 953 F.2d at 997.
We begin our determination by consulting the applicable
substantive law to determine what facts and issues are material.
King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992). We then
review the evidence relating to those issues, viewing the facts and
inferences in the light most favorable to the non-movant. Id. If
the non-movant sets forth specific facts in support of allegations
essential to his claim, a genuine issue is presented. Celotex, 477
U.S. at 327.
A.
To maintain a claim of sexual harassment in the workplace, a
plaintiff must demonstrate (1) that she belongs to a protected
class; (2) that she was subject to unwelcome sexual harassment;
(3) that the harassment was based on sex; (4) that the harassment
affected a “term, condition or privilege of employment”; and
(5) that the employer either 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), cert. denied,
479 U.S. 1065 (1987).
Sexually discriminatory verbal intimidation, ridicule, and
insults may be sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment that violates title VII. Harris v. Forklift Sys.,
6
Inc., 510 U.S. 17, __, 114 S. Ct. 367, 370-71 (1993) (citing
Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)). To
make out a claim for hostile environment sexual harassment, the
plaintiff must produce evidence of (1) sexually discriminatory
intimidation, ridicule and insults that are (2) sufficiently severe
or pervasive that they (3) alter the conditions of employment and
(4) create an abusive working environment. Harris, 510 U.S. at __,
114 S. Ct. at 370.
In determining whether a working environment is objectively
“hostile” or “abusive,” all the surrounding circumstances must be
considered, including
the frequency of the discriminatory conduct; its sever-
ity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreason-
ably interferes with an employee’s work performance.
510 U.S. at __, 114 S. Ct. at 371.
Lancaster has carried her burden of demonstrating a genuine
issue of material fact as to the existence of a hostile workplace
environment. Although this is a close case for purposes of summary
judgment, the alleged sex-based conduct4 could lead a reasonable
jury to find a pervasive hostile or abusive environment that
impaired Lancaster’s work performance. The existence of unwanted
sexual advances, the number of comments in a relatively short time
4
Lancaster’s allegations of non-discriminatory, sex-neutral hostile
conduct cannot be used to support a hostile environment claim. Title VII does
not protect employees from mere hostile conduct, but only from hostile conduct
that is based on their protected status. Mayberry v. Vought Aircraft Co., 55
F.3d 1086, 1091 (5th Cir. 1991).
7
period, the number of perpetrators, the wide array of victims, and
the fact that the perpetrators were supervisors distinguish this
case from DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d
591, 593 (5th Cir.), cert. denied, 116 S. Ct. 473, and cert.
denied, 116 S. Ct. 473 (1995), where the only conduct at issue took
the form of mere offensive utterances.
B.
The magistrate judge also held that Lancaster failed to show
constructive discharge, as a matter of law, because she did not
take advantage of the HEB grievance procedure. Lancaster’s only
argument is that Land’s comment that he finally got rid of her
proves constructive discharge. We agree that Lancaster cannot
demonstrate constructive discharge and thus cannot recover damages
for backpay. See Landgraf v. USI Film Prods., 968 F.2d 427, 429
(5th Cir. 1992).
Lancaster misunderstands the nature of a constructive
discharge claim. “In order to demonstrate constructive discharge,
[the plaintiff] must prove that ‘working conditions would have been
so difficult or unpleasant that a reasonable person in the
employee’s shoes would have felt compelled to resign.’” Landgraf,
968 F.2d at 429 (citing Bourque v. Powell Elec. Mfg. Co., 617 F.2d
61, 65 (5th Cir. 1990)); Jurgens v. EEOC, 903 F.2d 386, 390-91 (5th
Cir. 1990). Proof of a hostile work environment is insufficient to
8
support constructive discharge, as “the plaintiff must demonstrate
a greater severity or pervasiveness of harassment than the minimum
required to prove a hostile working environment.” Landgraf, 968
F.2d at 430; Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644
F.2d 1071, 1077 (5th Cir. Unit A May 1981) (holding that construc-
tive discharge requires “aggravating factors”).
The summary judgment evidence does not raise a genuine issue
of material fact with regard to constructive discharge. The
evidence shows that Lancaster never raised a complaint with HEB
management regarding the alleged sexual harassment. Moreover,
there is no evidence that a reasonable employee would have
considered the grievance procedure as futile. As the magistrate
judge correctly held, “[a] ‘reasonable employee,’ instead of
resigning would have first pursued a formal grievance with HEB
management.” See Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d
239, 242-43 (5th Cir. 1993) (holding that a reasonable employer
would file a grievance before walking off the job); McKethan v.
Texas Farm Bureau, 996 F.2d 734, 741 (5th Cir. 1993) (same); see
also Bourque, 617 F.2d at 66 (“[W]e believe that society and the
policies underlying Title VII will be best served if, whenever
possible, unlawful discrimination is attacked within the context of
existing employment relationships.”).
For the foregoing reasons, the judgment is AFFIRMED in part,
REVERSED in part, and REMANDED for further proceedings.
9