IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50992
(Summary Calendar)
JAMES P. CASIANO,
Plaintiff-Appellant
versus
AT&T CORPORATION; ET AL,
Defendants
AT&T CORPORATION
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
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June 12, 2000
Before POLITZ, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge.
In this supervisor sexual harassment case under Title VII,1
Plaintiff-Appellant James P. Casiano appeals the district court’s
grant of Defendant-Appellee AT&T’s motion for summary judgment
dismissing Casiano’s claims asserted on grounds of quid pro quo
harassment and retaliation. For reasons differing but slightly
from those expressed by the district court, we affirm, writing
separately only to clarify a few nuances that apparently continue
1
32 U.S.C. § 2000 et seq.
to confound some litigants and trial courts in cases such as this.
I.
FACTS AND PROCEEDINGS
AT&T initially hired Casiano in 1990 as a Customer
Representative. He worked in AT&T’s Personal Account Service
Department (PAS) between October, 1995 and March, 1997 except for
a medical leave hiatus between June and November, 1996. Casiano
was granted a temporary position as a Training Assistant in AT&T’s
Education Department in March, 1997 but remained attached to PAS,
under the supervision of Kathleen Stiggers. From April until
October, 1997, Casiano was mentored and observed by Anna Rodriguez,
a Course Administrator in the Education Department. During that
mentorship, Rodriguez noted that Casiano’s files and paperwork were
not properly handled, that his procedure book for a Refresher
Disability Training course had not been maintained correctly, and
that he had not adequately maintained his PAS portfolio of
customers whom he had agreed to continue servicing while assigned
temporarily to the Education Department. These deficiencies were
documented by Rodriguez, and she counseled Casiano on the need for
improvement in these areas.
In October, 1997, when Casiano’s training to teach AT&T
Worldnet commenced, his instructor, Kathy Aguilar, became his
mentor. According to Casiano, it was during this period that he
directly requested another Course Administrator, co-defendant Susie
2
Valenzuela, to stop asking him to bring her personal items such as
drinks and food. Casiano states that this request was ineffective
so, on December 17, 1997, he complained to Elsa Neaves, the
Training Staff Manager of the Education Department, about
Valenzuela’s behavior. In that initial complaint, he did not
mention or imply any sexual connotations but did describe the
retrieving of personal items as demeaning. He referred to them as
orders or commands rather than requests and stated that they were
made in the presence of other supervisory co-workers. (After
filing suit, Casiano averred additionally that on occasion
Valenzuela referred to him as “honey” or “my honey,” made a
statement to his wife about his having to work late with
Valenzuela, and phoned him at home late in the evening, ostensibly
on work related matters.)
Casiano was advised by Neaves that she would speak to
Valenzuela regarding these actions. Neaves apologized to Casiano
for Valenzuela’s behavior and told Casiano to let her know if
Valenzuela’s actions persisted. Neaves spoke to Valenzuela that
same day, advising her that the behavior complained of was
unprofessional and had to stop.
Casiano did not complain further to Neaves, but two days
later, on December 19, 1997, he and Paul Amerson, union steward for
Communication Workers of America, spoke “off the record” with Lee
Barden of AT&T’s Corporate Security regarding the same actions
about which Casiano had complained to Neaves, albeit without
3
identifying the offending supervisor by name. The stated reason
for conducting the meeting off the record was to ensure that there
would be no notes, files, or documents reflecting that the meeting
had occurred or that Casiano had complained to Barden that a
manager was acting inappropriately. Barden advised Casiano to
report his allegations to the AT&T Equal Opportunity Department,
but the record does not reflect that he did so. None dispute that
neither Casiano nor Amerson identified Valenzuela or alleged that
the unidentified supervisor had repeatedly initiated discussions of
marital status and sexual experiences and had requested to have sex
with Casiano.
That same month, Casiano completed his course of instruction
on Worldnet and returned to his full-time position as a Customer
Representative. In his deposition, Casiano insisted that he was
“removed” as a Training Assistant and “sent” back to work as a
Customer Representative after complaining to Neaves. He also
alleged that he lost his “pay differential,” and that Valenzuela
indirectly threatened retaliation, stating pointedly in his
presence that, when she is crossed, she responds ten times as
severely.
In January of 1998, Casiano sought to participate in
Associate-to-Management Assessment of Process (AMAP), submitting an
application packet to Pete Ramirez, his supervisor at the time. As
Casiano had not received a personal appraisal within the previous
twelve months, a requirement to participate in AMAP, Ramirez
4
contacted Aguilar and requested such an appraisal of Casiano. She
prepared one covering April through December, 1997, the period of
Casiano’s assignment to the Education Department. In completing
the appraisal, Aguilar consulted several other Course
Administrators, including Rodriguez, regarding Casiano’s
performance. When the appraisal was complete, Aguilar reviewed it
with Casiano and advised him that he was receiving a rating of
“satisfactory,” too low for him to be eligible for the AMAP
program. Claiming he was not thus informed, Casiano reported to
take a prerequisite GMAB test but was removed by a supervisor
because Casiano’s “satisfactory” personal appraisal made him
ineligible to participate.
In February 1998, AT&T received a letter from Casiano’s lawyer
alleging sexual harassment by Valenzuela, mentioning specifically
her requests that Casiano “retrieve” personal items for her and
have sex with her. Casiano has sworn that Valenzuela not only
demanded that he bring her food, beverages, and her purse (from
three floors away) and referred to him in the presence of other
workers as “honey” and “James, my honey,” but that on at least
fifteen occasions during a four-month period, she had initiated
sexual conversations and requested that he engage in sex with her.
Valenzuela was removed from work forthwith by AT&T’s Equal
Opportunity (“E.O.”) Department pending an immediate investigation
of Casiano’s complaint. E.O. Specialists Robert Everett and Karol
Burnett-Quick from AT&T’s E.O. Department in San Francisco traveled
5
to San Antonio to conduct the inquiry, interviewing eleven persons,
including both Casiano and Valenzuela. None of these co-workers
could substantiate Casiano’s allegations that Valenzuela had asked
him for sex, and the investigation reflected that among co-workers
in the area where Casiano and Valenzuela worked requests for
“retrieval” of items such as coffee, snacks, and soft drinks were
commonplace. Not surprisingly, there were no third-party witnesses
to Valenzuela’s alleged propositioning of Casiano, only his
accusations and her denials. Everett and Burnett-Quick also
concluded that there were no sexual implications in the beverage
requests or use of the term “honey.”
On the basis of that investigation, AT&T concluded that there
was insufficient evidence to support Casiano’s allegations of
sexual harassment. The investigation did reveal, however, that
Casiano’s personal appraisal should have been conducted by
Stiggers, his supervisor preceding his time in the Education
Department, and should have covered the twelve-month period between
December, 1996 and December, 1997; and that Aguilar’s written input
as a Course Administrator should have been limited to Casiano’s
performance in the Education Department. Consequently, the
appraisal prepared by Aguilar was discarded and a new one was
prepared by Stiggers. In it too, Casiano received a rating of
“satisfactory” for 1997. He has not contested the second appraisal
as being retaliatory, yet it appears to be the one that resulted in
his being denied participation in the AMAP program.
6
Casiano sued both AT&T and Valenzuela (in her individual
capacity), claiming discrimination in violation of Title VII. He
alleged both quid pro quo sexual harassment and retaliation —— the
latter tied to the initial “satisfactory” evaluation —— for
complaining about Valenzuela’s behavior toward him. Several months
after being sued, Valenzuela filed a motion for summary judgment
seeking dismissal on grounds that she was not an “employer” for
purposes of Title VII and thus could not be held individually
liable to Casiano. The district court dismissed Casiano’s action
against Valenzuela, and Casiano has not appealed that ruling.
Subsequently, AT&T moved for summary judgment. It asserted
six grounds for dismissing Casiano’s action: (1) Casiano could not
establish a prima facie case of actionable sexual harassment under
Title VII; (2) Casiano could not establish that he suffered a
tangible employment action or that such an action was taken against
him as a result of any alleged sexual harassment; (3) AT&T had
exercised reasonable care to prevent and correct promptly any
alleged sexually harassing behavior by Casiano’s supervisor; (4)
Casiano unreasonably failed to take advantage of any preventative
or corrective opportunities provided by AT&T; (5) Casiano could not
present evidence that he engaged in a protected activity sufficient
to afford protection of the anti-retaliation provisions of Title
VII; and (6) Casiano could not present evidence that he suffered an
adverse employment action as a result of engaging in any protected
activity.
7
In September of 1999, the district court granted AT&T’s motion
for summary judgment, dismissing Casiano’s claims with prejudice.
After an abbreviated review of some of the “Undisputed Material
Facts” and a reiteration of some of the elements necessary for an
employee to recover for “quid pro quo” sexual harassment, including
suffering “some type of tangible injury, or loss of a tangible
benefit, because he refused his supervisor’s advances,” the
district court emphasized AT&T’s internal employee grievance
procedure of which Casiano availed himself and AT&T’s actions in
response to Casiano’s complaints. The court also discussed the
content of Casiano’s initial complaint (which did not include
allegations of sexual comments) to AT&T about Valenzuela’s alleged
actions, the initial “satisfactory” evaluation by Aguilar,
Casiano’s failure to make or imply sexual complaints until his
attorney’s letter in February, and his failure ever to complain
about the Stiggers’ “satisfactory” evaluation after the Aguilar
evaluation was withdrawn and replaced. Rejecting the quid pro quo
claim, the court concluded that Casiano would not be able to prove
that any tangible employment action against him had a causal
connection with his refusal to comply with Valenzuela’s alleged
sexual demands or his complaints to AT&T personnel about
Valenzuela’s behavior when she called him “honey” or when she
requested or demanded that he bring her coffee, cold drinks, and
her purse. Also rejecting the retaliation claim, the court
concluded that, as a matter of law, Casiano could not show the
8
required nexus between the denial of access to AMAP and the
“satisfactory” evaluation that barred him from participation in
that program, as the evaluation allegedly made in retaliation for
his complaints about Valenzuela was withdrawn and replaced with a
new one that also classified him as “satisfactory” but about which
he did not complain. Casiano timely filed his notice of appeal.
II.
ANALYSIS
We review the district court’s grant of summary judgment under
the well-known de novo standard. We can and frequently do affirm
the judgment of a district court for reasons other than those
expressed by that court. Such is the situation here, but only in
minor part. Moreover, we do so to reinforce the methodology
specified by the Supreme Court for disposing of all supervisor
sexual harassment cases under Title VII,2 following step by step
the clear road map laid out for trial and appellate courts in
companion cases, Burlington Industries, Inc. v. Ellerth3 and
Faragher v. City of Boca Raton.4 And, lest our verbal exposition
of the methodology mandated by the Supreme Court in those two cases
2
See Indest v. Freeman Decorating, Inc., 168 F.3d 795 (5th
Cir. 1999)(Wiener, J., specially concurring). Compare, id. at
164 F.3d 258 (Jones, J.)(neither opinion precedential for lack of
concurrences). There are distinguishing differences in the acts
of the employees and employers in Indest and the instant case.
3
524 U.S. 742 (1998).
4
524 U.S. 775 (1998).
9
be less than pellucid, we append to this opinion a graphic
representation of that procedure.5
At the first stop on the Ellerth/Faragher road map, courts are
required to determine whether the complaining employee has or has
not suffered a “tangible employment action.”6 If he has, his suit
is classified as a “quid pro quo” case; if he has not, his suit is
classified as a “hostile environment” case. That determination
provides a fork in the road on the Ellerth/Faragher map: In a
“quid pro quo” case, the road branches toward a second stop at
which the court must determine whether the tangible employment
action suffered by the employee resulted from his acceptance or
rejection of his supervisor’s alleged sexual harassment.7 If the
employee cannot show such a nexus, then his employer is not
5
See Supervisor Sexual Harassment Road Map, appended
hereto and made part hereof. We do not mean to imply that trial
courts must pause at each stop on the route and rotely verbalize
its significance or insignificance to the particular case; stops
can be skipped if the implications are obvious or can be assumed
arguendo so as to reach a subsequent stop at which the case
ultimately turns. For example, without stopping a court that has
found the existence of a “tangible employment action” could
assume arguendo that the plaintiff has been sexually harassed by
a supervisor, then go directly to Stop 2 on the quid pro quo
branch and determine at that stop that there is no evidence (or
no genuine issue of material fact) of a nexus between the
harassment and the employment action.
6
See Ellerth, 524 U.S. at 761-62 (tangible employment
actions “require[] an official act of the enterprise, a company
act,” such as “hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision
causing a significant change in benefits”)
7
Id. at 753-54.
10
vicariously liable under Title VII for sexual harassment by a
supervisor; but if the employee can demonstrate such a nexus, the
employer is vicariously liable per se8 and is not entitled to
assert the one and only affirmative defense permitted in such cases
since Ellerth and Faragher.9 In other words, proof that a tangible
employment action did result from the employee’s acceptance or
rejection of sexual harassment by his supervisor makes the employer
vicariously liable, ipso facto; no affirmative defense will be
heard.
On the other hand, if the first-stop question is answered in
the negative, i.e., the employee did not suffer a tangible
employment action —— the situation perceived to exist as a matter
of law by the district court in this case —— the suit is a “hostile
environment” case, and the other branch at the fork in the
Ellerth/Faragher road must be followed. On this branch, a
different inquiry ensues at the second stop: If proved, would the
actions ascribed to the supervisor by the employee constitute
severe or pervasive sexual harassment?10 If they do not, Title VII
imposes no vicarious liability on the employer; but if they do, the
8
Id. at 753, 761, 762 (“[A] tangible employment action taken
by the supervisor becomes for Title VII purposes the act of the
employer.”); Faragher, 524 U.S. at 804-05.
9
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808.
10
Ellerth, 524 U.S. at 752, 754; Faragher, 524 U.S. at 787-
88 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993)).
11
employer is vicariously liable —— unless the employer can prove
both prongs of the Ellerth/Faragher affirmative defense, to wit:
Absent a tangible employment action, (1) the employer exercised
reasonable care to prevent or correct promptly any such sexual
harassment, and (2) the employee did not unreasonably fail to take
advantage of any preventative or corrective opportunities provided
by the employer or to avoid harm otherwise.11 As noted, this is the
employer’s only affirmative defense in a supervisor sexual
harassment case post Ellerth/Faragher, and it is available only in
a hostile environment (no tangible employment action) situation;
never in a quid pro quo (tangible employment action) case.
As the affirmative defense is applicable only when the
asserted sexual harassment by a supervisor has not produced a
tangible employment action, the court cannot merely assume arguendo
the presence of actionable harassment with a nexus to a tangible
employment action and decide the case on the affirmative defense ——
it is simply not available. Determination whether the complaining
employee has suffered a tangible employment action is the
indispensable first step in every supervisor sexual
harassment/vicarious liability case under Title VII, even if
subsequent stops on the road map may be skipped.12
11
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 805, 807.
12
See supra n.5.
12
We agree with the district court that, on the basis of
Casiano’s summary judgment evidence, he cannot prove that he
suffered a tangible employment action; he cannot demonstrate the
existence of a genuine dispute of material fact in that regard.
Even when we view the facts in the light most favorable to Casiano
as the non-movant, we perceive nothing in his evidence or the
inferences from it supporting a conclusion that his ineligibility
to take the GMAB test or otherwise participate in the AMAP program
constituted a tangible employment action by AT&T. While serving as
a Training Assistant in the Education Department, Casiano remained
permanently assigned to the PAS; he could only gain entry to AMAP
by, inter alia, taking and passing the GMAB test, eligibility for
which required a personal evaluation better than “satisfactory.”
Even assuming arguendo that his initial evaluation was somehow
tainted by input from Valenzuela or was otherwise downgraded in
retaliation for his having reported her alleged misbehavior, that
evaluation is not the one that barred him from the test and the
program. Rather, the second evaluation, performed by the
appropriate supervisor for the appropriate twelve-month period ——
which gave him the same “satisfactory” rating —— was the one that
blocked him; and he did not (and likely could not) complain that
the second evaluation was the product of retaliation.
Having determined the absence of a tangible employment action,
which absence pretermits quid pro quo analysis, the hostile
environment branch of the Ellerth/Faragher road map leads to our
13
next stop, at which we must determine whether Valenzuela’s alleged
misbehavior, if proved, was sufficiently “severe or pervasive” to
create an actionable “hostile environment.”
The district court gave relatively short shrift to the issue
of severe or pervasive sexual harassment. Although, like that
court, we eventually reach the final stop on this “hostile
environment” branch of the Ellerth/Faragher road, i.e., the
employer’s affirmative defense, we are constrained to note that,
for summary judgment purposes —— again, treating Casiano’s
affidavit and deposition testimony as summary judgment evidence and
viewing it, its inferences, and all other evidence in the light
most favorable to him —— Casiano has at least demonstrated the
existence of a genuine issue of material fact whether the alleged
sexual harassment rises to the severe or pervasive level. Standing
alone, neither a supervisor’s referring to a subordinate employee
of the opposite sex as “honey” nor the supervisor’s demanding ——
even in the presence of others —— that the subordinate employee
perform demeaning personal tasks for the supervisor, is sufficient
to constitute sexual harassment.13 When viewed in pari materia with
multiple incidents of egregious sexual misconduct alleged, however,
such behavior can serve to bolster a conclusion of sexual
harassment, even severe or pervasive harassment.
13
But see Ellerth, 524 U.S. at 754 (expressing no opinion
whether a “single unqualified threat is sufficient to constitute
discrimination in the terms and conditions of employment”).
14
Here, there is a classic, no-witness “swearing match” between
Casiano and Valenzuela regarding overt sexual conduct: Despite
Valenzuela’s vehement denial, Casiano has sworn that, on at least
fifteen separate occasions during a four-month period, she directly
propositioned him to engage in sex and to discuss their respective
sexual appetites and experiences. In the context of the demeaning
or humiliating implications of requests or demands for the delivery
of food, drinks, or a purse and references to a subordinate as
“honey,” such extensive and persistent sexual overtures would, if
proved, almost certainly constitute severe or pervasive sexual
harassment. In this evenly balanced, no-other-evidence, “he said/
she said” case, either party could prevail at trial, depending
solely on which one the trier of fact believes after hearing the
testimony and observing the demeanors of the protagonists on the
witness stand.
The law is well settled that sexual harassment of an employee
by a supervisor is not confined to instances involving male
supervisors and female subordinates; it can occur in the female
supervisor-male subordinate context. It can even occur in the
same-sex context.14 Indeed, we need only hypothetically transpose
the sexes of the parties in this case to demonstrate our point: If
Valenzuela had been male and Casiano female, summary judgment
evidence supporting allegations that the male supervisor had (1)
14
See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75 (1998).
15
called the female subordinate “honey” in the presence of other
employees; (2) repeatedly demanded that she bring him his coffee,
cold drinks, snacks, and a personal item; (3) attempted, in the
privacy of his office, to initiate discussions with her about their
respective sexual proclivities, preferences, and performances; and
(4) in a four-month period, propositioned her (and been rejected)
to engage in extramarital sex with him no less than fifteen times,
would any court conclude that —— if proved —— such behavior would
not constitute severe or pervasive sexual harassment? As such
evidence would present a stereotypical genuine issue of material
fact, we are constrained to disagree with the district court’s
inference that Casiano did not demonstrate at least the existence
of such a factual dispute about the presence of severe or pervasive
sexual harassment. As we view the situation, he would be able to
defeat summary judgment and thus be entitled to proceed to trial on
his claim of AT&T’s vicarious liability —— unless AT&T could
sustain its affirmative defense.
Having faithfully followed the hostile environment branch of
Ellerth/Faragher road after concluding, at the initial fork in that
road, that Casiano failed to demonstrate a genuine dispute of
material fact concerning a tangible employment action, and
concluding, at the next stop, that he did establish the existence
of such a dispute concerning severe or pervasive sexual harassment
by a supervisor, we come now to the third and final stop on this
16
branch of the road. Here, we must test the employer’s one and only
potential affirmative defense.
AT&T insists, first, that it exercised reasonable care to
prevent and, if not prevented, to correct promptly any sexually
harassing behavior by supervisory personnel, and, second, that
Casiano unreasonably failed to take adequate and appropriate
advantage of any preventative or corrective opportunities provided
by AT&T or to avoid such harm otherwise. Like the district court,
we agree with AT&T.
The summary judgment evidence adduced by AT&T regarding its
extant procedures for encouraging and facilitating employee
complaints of sexual harassment and for thereafter dealing with
them swiftly and effectively is essentially uncontroverted and
eschews the existence of a genuine dispute of material fact in that
regard. AT&T’s Personnel Guide, Employee Reference Guide, and
“Common Bond” all articulate the company policy that forbids sexual
harassment and encourages both those who believe they are being
harassed and those who witness harassment to notify supervisors as
well as the “applicable” AT&T EO/AA representative. Casiano
concedes awareness of these publications and the policies they
embody, and further acknowledges that supervisors reviewed them
with him both initially and during the course of his employment.
He acknowledges familiarity with the procedures for lodging
complaints, yet the evidence shows that he did not effectively
avail himself of those procedures. Both his first complaint,
17
lodged with Neaves, and his “off the record” discussion with Barden
and the union steward, were devoid of either direct or implied
reports of sexual harassment. Casiano also failed to heed Barden’s
advice to report the situation and, moreover, the responses of
Neaves and Barden to Casiano’s complaints of supervisory
misbehavior of a non-sexual nature were entirely appropriate, both
temporally and substantively.
When, through his counsel, Casiano finally notified AT&T of
alleged sexual misconduct, well after the harassment and well after
Casiano had ceased working in the Education Department, AT&T
responded promptly and effectively: It suspended Valenzuela, the
accused harasser, and dispatched two of its E.O. Specialists to
conduct an in-depth investigation involving, among other things,
interviews with Casiano, Valenzuela, and nine other workers. The
conclusions reached by the investigators are well-substantiated by
the information they were able to ferret out, so the suggested
action and the action actually taken by the employer on those
recommendations were reasonable.
Considering the employee’s efforts and assuming for summary
judgment purposes that Casiano’s allegations against Valenzuela are
true, the only reasonable conclusion we can reach is that he
unreasonably failed to take advantage of any preventative or
corrective opportunities afforded him by AT&T or to avoid harm
otherwise. By his own account, he suffered at least fifteen
propositions yet never reported any of the incidents until months
18
after the last of them. In his earlier complaints, he never raised
one specter of direct sexual overtures, even implicitly. He did
nothing else, within or without the prescribed policy and
procedures, until his lawyer wrote the company, well after the
fact. We are satisfied that, were this case ever to go to trial,
AT&T would be entitled to judgment as a matter of law on its
Ellerth/Faragher affirmative defense, if nothing else.15 Thus, no
useful purpose would be served by reversing the district court’s
grant of AT&T’s summary judgment and remanding the case for trial.
Other than causing a significant waste of judicial resources at the
trial and appellate levels and causing the parties to expend
considerable financial resources in further litigation, nothing
would be gained by postponing the inevitable. For the forgoing
reasons, the district court’s grant of summary judgment in favor of
AT&T, dismissing Casiano’s action, is, in all respects
AFFIRMED.
15
See Faragher, 524 U.S. at 807 (stressing that “[i]f the
plaintiff unreasonably failed to avail herself of the employer’s
preventative or remedial apparatus, she should not recover
damages”).
19
20
21
Casiano v. AT&T Corporation
Court: Court of Appeals for the Fifth Circuit
Date filed: 2000-06-12
Citations: 213 F.3d 278
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