United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 13, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40418
MOLLY HARVILL,
Plaintiff-Appellant,
versus
WESTWARD COMMUNICATIONS, L.L.C., ET AL.,
Defendants,
WESTWARD COMMUNICATIONS, L.L.C.;
WESTWARD COMMUNICATIONS, LP,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Plaintiff Molly Harvill (“Harvill”) brought this suit against her employer, Westward
Communications (“Westward”), alleging claims for sexual harassment, constructive discharge and
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., and for unpaid
overtime compensation under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. The district
court granted summary judgment in favor of Westward on the grounds that (1) the alleged harasser’s
conduct was not sufficiently severe and pervasive to constitute a hostile work environment, (2)
Harvill did not establish that Westward failed to take prompt remedial action once it learned of the
alleged harassment, (3) Harvill failed to exhaust her administrative remedies before the Equal
Employment Opportunity Commission (EEOC) as to her constructive discharge claim, (4) Harvill
could not establish constructive discharge, which was also the basis for her retaliation claim, and (5)
there was a paucity of evidence to support her claim for unpaid overtime compensation under the Fair
Labor Standards Act. She appeals the district court’s grant of summary judgment as to her sexual
harassment, retaliation and unpaid overtime compensation claims. For the following reasons, we
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Molly Harvill brought this action alleging that she had been repeatedly subjected to sexual
harassment by a co-worker. In January of 2001, she began working with the Grand Saline Sun (“the
Sun”) as an office manager for the newspaper. The paper is owned by Westward Communications.
During a new employee orientation, Harvill received a company handbook that included an
explanation of the company’s anti-harassment policies. The handbook stated that if an employee
believed that she was being harassed, she was to directly inform her immediate supervisor. If speaking
with the supervisor did not provide sufficient recourse, then the employee must direct her complaint
to the Director of Human Resources.
On October 11, 2001, Harvill, along with fellow employee Lado nna Allison Hockman
(“Hockman”), alleged to their immediate supervisor Nell French, the publisher of the Sun, that they
had been sexually harassed by Oscar Rogers, who operated a commercial printing press within the
Sun’s offices. French then initiated an investigation into the allegations, speaking with several female
2
employees of the Sun about whether they were cognizant of any inappropriate behavior by Rogers.
Additionally, French spoke with former employees to determine whether they too had information
regarding allegations of Rogers’ having sexually harassed female employees at the Sun; however,
French never spoke with Rogers, who remained unaware of any sexual harassment allegations being
made against him.
Harvill claimed that Rogers continued to sexually harass her even after she had reported his
conduct to French. Harvill approached French two or three times to inform her that Rogers’
inappropriate behavior was continuing. Finally, in February of 2002, Harvill informed Westward that
she would be filing an EEOC charge against the company based on Rogers’ continuing conduct. Gina
Fisher, Westward’s Director of Human Resources, then launched her own investigation. Fisher
contacted Rogers and informed him that sexual harassment allegations had been made against him.
Fisher also alerted French that Harvill claimed that she was still being harassed by Rogers. Fisher
further spoke with an employee of the Sun named Aggie McDonald. Harvill and Hockman claimed
that McDonald would substantiate their claims. McDonald had alleged that Rogers had accidently
brushed up against her more than a decade earlier; however, contrary to Harvill’s representation of
McDonald’s declarations, McDonald told Fisher that she did not believe that he had intended anything
untoward. Indeed, McDonald asserted that, to her knowledge, Rogers had never behaved
inappropriately towards any female employee.
Harvill and Fisher scheduled a telephone conversation for February 21, 2002, during which
Harvill described Rogers’ conduct towards her, which included several alleged instances of lewd and
inappropriate touching. When Fisher queried Harvill as to why Harvill had not brought these
3
complaints to her earlier, Harvill asserted that she had been expressly instructed by her supervisor
French not to ever go above French’s head on any matters.
Fisher immediately ordered that Rogers no longer work in close physical proximity to either
Harvill or Hockman, who had both made allegations of sexual harassment against him. Fisher
continued to interview numerous former and current employees of the Sun. Fisher’s investigation
uncovered no evidence specifically corroborating Harvill’s or Hockman’s allegations regarding
Rogers. On March 13, 2002, Fisher informed both Rogers and French of the results of her
investigation. She also instructed Rogers to avoid direct interaction with Harvill and Hockman. Less
than a week later, Fisher met with Harvill and informed Harvill that she was unable to uncover
sufficient corroborating evidence to support Harvill’s allegations and warrant further company action
against Rogers.
On March 25, 2002, Harvill sought leave under the Family Medical Leave Act (FMLA), 29
U.S.C. § 2601 et seq. She was informed by Fisher that her job and benefits would remain in place,
and that her leave fell under the auspices of the FMLA. Within a relatively short period of time after
she had taken her leave, Harvill tendered her resignation, asserting that this was at the behest of her
physician. Shortly thereafter, Harvill brought this action claiming, inter alia, sexual harassment,
constructive discharge, and retaliation. Westward eventually moved for summary judgment, and the
motion was granted. This timely appeal ensued.
II. DISCUSSION
A. Standard of Review
A party’s motion for summary judgment will be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there
4
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 moving party has the burden of demonstrating that there
are no genuine issues of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving
party, then there is no genuine issue for trial.” Steadman v. Texas Rangers, 179 F.3d 360, 366 (5th
Cir. 1999). We review the district court’s grant of summary judgment de novo and apply the same
legal standards that the district court applied to determine whether summary judgment was
appropriate. Lamar Adver. Co. v. Cont’l Cas. Co., 396 F.3d 654, 659 (5th Cir. 2005).
B. Sexual Harassment Claim
Harvill first argues that the district court erred in granting summary judgment for Westward
on her sexual harassment claim because substantial evidence exists that the harassing conduct was
severe or pervasive, and that her employer failed to take prompt remedial action.
Harvill can establish that she was sexually harassed in violation of Title VII by proving, inter
alia, that the harassment created a hostile or abusive working environment. Woods v. Delta Beverage
Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001). To establish a hostile work environment claim,
Harvill must demonstrate that: (1) she is member of a protected group; (2) she was the victim of
uninvited sexual harassment; (3) the harassment was based on sex; (4) t he harassment affected a
“term, condition, or privilege” of Harvill’s employment; and (5) her employer knew or should have
known of the harassment and failed to take prompt remedial action. Id. at 298.
The parties agree that Harvill has established the first three elements of her prima facie case;
they only dispute whether the harassment affected a “term, condition, or privilege” of Harvill’s
5
employment, and whether Westward knew or should have known of the harassment and failed to take
prompt remedial measures.
1. Whether the harassment affected a term, condition, or privilege of employment
“For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter
the conditions of [the victim’s] employment and create an abusive working environment.’” Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (alteration in original) (quoting Henson v. City
of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). In determining whether an environment is “hostile”
or “abusive” within the meaning of Title VII, courts look at the totality of the circumstances including
“the frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” Harris v. Forklift, 510 U.S. 17, 23 (1993). We have also considered whether
the complained of conduct undermines the plaintiff’s workplace competence. Hockman v. Westward
Commc’ns, 407 F.3d 317, 326 (5th Cir. 2004) (citing Butler v. Ysleta Indep. Sch. Dist., 161 F.2d
263, 270 (5th Cir. 1998)). “To be actionable, t he challenged conduct must be both objectively
offensive, meaning that a reaso nable person would find it hostile and abusive, and subjectively
offensive, meaning that the victim perceived it to be so.” Shepherd v. Comptroller of Pub. Accounts,
168 F.3d 871, 874 (5th Cir. 1999) (citing Harris, 510 U.S. at 21-22).
The district court held that the harassment by Rogers was not so severe and pervasive that
it altered the terms and conditions of Harvill’s employment. In requiring Harvill to establish that the
conduct was both severe and pervasive, the district court applied the wrong legal standard. As quoted
above, the Supreme Court has stated that Title VII provides a legal remedy to victims who establish
that the abusive conduct was severe or pervasive. Meritor 477 U.S. at 67; see also Harris, 510 U.S.
6
at 21; Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001); Faragher v. Boca Raton, 524
U.S. 775, 786 (1998) (quoting Meritor, 477 U.S. at 67); Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 752 (1998); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000) (“Harassment
need not be severe and pervasive to impose liability; one or the other will do.”). The district court’s
error may have resulted from inconsistent application of the “severe or pervasive” standard in this
circuit. Compare Hockman, 407 F.3d at 326, 329 (“severe and pervasive”), and Shepherd, 168 F.3d
at 874 (same (quoting Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996))), with
Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005) (“severe or pervasive”), Farpella-
Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (same), Carmon v. Lubrizol Corp.,
17 F.3d 791, 794 (5th Cir. 1994) (same), and Indest v. Freeman Decorating, Inc., 168 F.3d 795, 802
(5th Cir. 1999) (Weiner, J., specially concurring) (emphasizing that the standard is the disjunctive
severe or pervasive). Nevertheless, the Supreme Court’s decisions are controlling and we correctly
stated the standard originally in Waltman v. International Paper, 875 F.2d 468, 477 (1989);
therefore, subsequent incorrect statements of the test are not binding. See, e.g., H&D Tire &
Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 330 (5th Cir. 2000) (“When panel
opinions appear to conflict, we are bound to follow the earlier opinion.”).
Contrary to being an irrelevant distinction, as Westward’s counsel asserts, the requirement
that a plaintiff establish that reported abusive conduct be both severe and pervasive in order to be
actionable imposes a more stringent burden on the plaintiff than required by law. The Supreme Court
has stated that isolated incidents, if egregious, can alter the terms and conditions of employment. See
Faragher, 524 U.S. at 788; see also Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001) (“[W]e have
often recognized that even one act of harassment will suffice [to create a hostile work environment]
7
if it is egregious.”); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (holding that
a single incident of physically threatening and humiliating conduct can be sufficient to create a hostile
work environment for a sexual harassment claim); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d
Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)
(“[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim’s
employment and clearly creates an abusive work environment for the purposes of Title VII liability.”).
By contrast, under a conjunctive standard, infrequent conduct, even if egregious, would not be
actionable because it would not be “pervasive.”
Harvill alleges that Rogers’ harassment began in July 2001 and continued until Gina Fisher,
the Director of Human Resources, confronted Rogers with the allegations in February 2002. In her
deposition, Harvill testified that, during that seven-month period, Rogers grabbed her and kissed her
on the cheek, popped rubber bands at her breasts, fondled her breasts “numerous times,” patted her
on her buttocks “numerous times,” and came behind her and rubbed his body against her. At one
point, Harvill estimated that Rogers touched her breasts or her buttocks perhaps as often as once a
week–although she later stated that it may not have been as often as once a week. She also claims that
on one occasion Rogers made comments to her about her sex life and her abilities in bed. Harvill
stated that she protested every time Rogers touched her breasts and she also protested when Rogers
would pat her buttocks. Undoubtedly, the deliberate and unwanted touching of Harvill’s intimate
body parts can constitute severe sexual harassment. See, e.g., Worth, 276 F.3d at 268 (“[D]irect
contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”).
Viewing the evidence in the light most favorable to Harvill, the non-movant, we conclude that a
reasonable jury could find that Rogers’ conduct was sufficiently severe or pervasive to alter a term
8
or condition of Harvill’s employment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (stating that the inquiry on summary judgment is whether the evidence could
lead a rational trier of fact to find for the non-moving party); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The district court concluded, and Westward stringently urges on appeal, that “Harvill’s
allegations of ‘numerous touchings or fondlings’ and ‘numerous butt grabbings’ [were] too
conclusory as to create an issue o f material fact on her harassment claim.” Harvill v. Westward
Communications, LLC, 311 F. Supp. 2d 573, 582 (E.D. Tex. 2004). We disagree. Harvill recalled
that the first incident of harassment occurred in July 2001, after Rogers had returned from a vacation
and she walked back to his office area to give him a message. She contends that he used the
opportunity to grab her and kiss her on her cheek. She stated that sometime after that, Rogers
touched her breast for the first time in the hallway leading to the front office, and she described the
exchange t hat occurred as a result of the touching. She recalled the circumstances surrounding
occasions when Rogers popped rubber bands at her breast and patted her on her buttocks, and she
listed individuals who allegedly witnessed the events. Additionally, she recalled a conversation in
which Rogers questioned her about her sex life and told her that a technician from Ramirez Air
Conditioning, who she had dated many years prior, had allegedly told him that she was skilled in bed.
We do not agree that Harvill’s allegations are too conclusory to permit a fact finder to assess the
totality of the circumstances. Harvill’s assertions that she was touched “numerous times” instead of
providing exact dates or the exact number of instances do not render her allegations so conclusory
that they fail to create a genuine issue of material fact. Cf. Torres v. Pisano, 116 F.3d 625, 631 (2d
Cir. 1997) (finding that the ability to recall the exact dates and circumstances of only a few of the
9
incidents of harassment may make it “difficult to convince a jury that pervasive harassment in fact
took place,” but do not defeat the plaintiff’s claim as a matter of law). To require that Harvill provide
precise dates for the occurrences or provide an exact number of occurrences to support her
allegations is an onerous burden not required by law. Whether her allegations are too vague to
ultimately carry the day is a credibility determination, or requires weighing the evidence, both of
which are more appropriately done by the trier of fact. See Moore v. Willis Indep. Sch. Dist., 233
F.3d 871, 874 (5th Cir. 2000) (stating that the court cannot make credibility determinations or weigh
any evidence on a summary judgment motion). Accordingly, the district court erred in concluding that
Harvill did not raise a genuine issue of fact as to whether Rogers’ alleged conduct towards Harvill
was sufficiently severe and pervasive1 such that it altered the terms and conditions of her employment.
2. Whether Westward failed to take prompt remedial action
The district court also held that Harvill failed to establish the fifth prong of a prima facie case
for a hostile work environment sexual harassment claim; specifically, she did not show that Westward
failed to take prompt remedial action upon being informed of the harassment.
We have observed that determining “[w]hether an employer’s response to discriminatory
conduct is sufficient ‘will necessarily depend on the particular facts of the case,’” such as the remedial
steps taken and the severity of the harassment. Hirras v. Nat’l. R.R. Passenger Corp., 95 F.3d 396,
399-400 (5th Cir. 1996) (quoting Waltman, 875 F.2d at 479). “When a company, once informed of
allegations of sexual harassment, takes prompt remedial action to protect the claimant, the company
may avoid Title VII liability.” Nash v. Electrospace Sys., Inc., 9 F.3d 401, 402 (5th Cir. 1993).
1
Again, we emphasize that the district court erroneously applied the conjunctive “severe
and pervasive” standard rather than the disjunctive “severe or pervasive” standard.
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“Prompt remedial action must be reasonably calculated to end the harassment,” therefore, Westward
may be held liable “despite having taken remedial steps if [Harvill] can establish that [Westward’s]
response was not reasonably calculated to halt the harassment.” Skidmore v. Precision Printing &
Packaging Inc., 188 F.3d 606, 615-16 (5th Cir. 1999) (internal quotation marks omitted).
We have also recognized that an employee must take advantage of corrective opportunities
provided by the employer. Woods, 274 F.3d at 300 n.3. Nonetheless, if an employee believes that
bringing a subsequent sexual harassment complaint would be futile, or “it becomes objectively
obvious that the employer has no real intention of stopping the harassment, the harassed employee
is not obligated to go through the wasted motion of reporting the harassment.” Id. at 300-01.
Harvill informed her supervisor, Nell French, of the harassment in October 2001. She argues
that French failed to take prompt remedial action and, as a result, the harassment continued for four
more months. She claims that French’s investigation was not reasonably calculated to end the
harassment because French did not confront Rogers or interview the appropriate witnesses. Westward
counters that French did take remedial action, by investigating the allegations; however, French found
that the claims could not be substantiated and, therefore, further remedial steps were unnecessary.
Westward also argues that Harvill unreasonably failed to follow the company’s procedure for lodging
a harassment complaint because Harvill did not bring her complaint to higher management when she
became dissatisfied with the way French handled the situation. When Harvill did contact Human
Resources, the company immediately separated Rogers and Harvill, after which time Harvill concedes
that all harassment ceased. Therefore, Westward contends that it did take prompt remedial action that
was calculated to end the harassment after Harvill bypassed French and took advantage of the
corrective opportunities made available to her. The district court granted summary judgment for
11
Westward on this basis because it concluded that Harvill unreasonably failed to follow the company
procedure for lodging a complaint, and once she did, prompt remedial action was taken. Harvill
claims that the district court’s ruling was in error because the court did not take into account that she
and her co-worker, Hockman, reported their allegations on more than one occasion to French, but
did not initially go to Human Resources because they were directly commanded by French to never
go over French’s head on any matters.
Hockman asserted similar claims against Rogers in a Title VII action in federal court and on
appeal t his court denied her relief. See Hockman, 407 F.3d 317. The facts presented here are
distinguishable from the factual circumstances in Hockman specifically as they relate to whether the
harassment was “severe or pervasive.”2 Notwithstanding the unique factual scenario Harvill presents
regarding her interactions with Rogers, we find that the fifth prong, namely the remedial measures
Harvill sought and received from Westward, is the dispositive issue and it is on this issue that our
prior opinion in Hockman is instructive. Because the record before us is substantially similar to the
record in Hockman as to this dispositive issue, the fates of Hockman and Harvill are intertwined. In
Hockman, this court held that Hockman “unreasonably failed to bring her complaint to a higher-
echelon employee (Fisher) [even] though she was dissatisfied with the way French handled the
2
As it relates to our prior discussion of “severe or pervasive” standard, we note the two
cases are distinguishable. Harvill stated that Rogers touched her breasts “numerous times” and
would pat her buttocks. She also averred that she protested every time Rogers touched her
breasts and she also protested when Rogers would pat her buttocks. As previously stated, we find
that the harassment Harvill endured satisfies the disjunctive standard. By contrast, Hockman
alleged that “Rogers ‘would sort of brush up against [her]’” and she admitted that “these
brushings were neither severe nor pervasive.” Hockman, 407 F.3d at 326 (emphasis added). In
her deposition testimony, Hockman admitted that she did not protest when he brushed up against
her because the incidents were over before she had the chance to say anything. “In fact, at first she
thought they were accidental, stating that ‘just as quickly as [an incident] started, . . . it ended ....
And once it was over, it was over.’” Id. (second omission in original).
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situation.” 407 F.3d at 329. The Hockman court concluded that Hockman could not establish that
Westward failed to take prompt remedial action because:
(1) Hockman received the Westward employee handbook containing the company’s
anti-harassment policy; (2) the policy provides that if the employee does not feel that
her allegation is being handled satisfactorily by his or her supervisor, then she should
report the incident directly to the Director of Human Resources; (3) she
acknowledged her receipt of the handbook and understanding of its provisions with
her signature; and (4) despite her awareness, there is no evidence that Hockman
availed herself of any of the company’s provisions after speaking to French, several
months after the alleged harassment began.
Id. at 329-30. The court found it irrelevant that Hockman and Harvill were provided with an outdated
copy of the anti-harassment policy. The Hockman court also found it irrelevant that, at an employee
meeting concerning an unrelated event, French had emphatically told Harvill and Hockman that they
were never to go over her head about anything.
As in Hockman, Harvill acknowledged that she signed a document stating that she received
Westward’s employee handbook. The employee handbook outlined the company’s anti-harassment
policy and stated that “[i]f the employee feels that it would be inappropriate to report the matter to
the immediate supervisor or the matter is not satisfactorily resolved at this level, the employee should
report the incidents directly to the director, Human Resources . . . .” Harvill also conceded that the
document she signed acknowledging receipt of the employee handbook stated that it was the
obligation and responsibility of the employee to read and be familiar with the contents of the
handbook. Harvill and Hockman approached French together in October 2001 to present their claims
of sexual harassment by Rogers. On more than one occasion, both Harvill and Hockman approached
French after the October meeting to report that the harassment was continuing but did not inform
Human Resources of their complaints. Both women also stated that the harassment completely ceased
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after an attorney, acting on behalf of both Harvill and Hockman, finally sent a letter to Robert
McMaster, the Chief Executive Officer of Westward, and Gina Fisher, Westward’s Director of
Human Resources, to inform Westward of Rogers’ behavior.
As it concerns Harvill’s familiarity with the anti-harassment policy and the steps she took to
inform her employer of the alleged harassment, the circumstances in Hockman and in the case at bar
are not just similar but identical. Harvill and Hockman each signed a document in which she
acknowledged receipt of the employee handbook and stated that she understood the anti-harassment
policy. Moreover, they acted in concert in informing their employer of the alleged harassment.
Because the circumstances in Hockman and in the case at bar are indistinguishable as to this fifth
prong, we conclude that we are bound by this court’s decision in Hockman that, on these particular
facts, the employee unreasonably failed to take advantage of corrective opportunities provided by
Westward. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (“[O]ne panel
of this court cannot overrule the decision of another panel . . . .”). Once the CEO and Director of
Human Resources were notified of Harvill’s claims, Westward acted swiftly in taking remedial
measures and the harassment ceased. Harvill has not raised a genuine issue of fact on the prompt
remedial action element of her prima facie hostile work environment claim; therefore, we affirm the
district court’s grant of summary judgment for Westward.
C. Retaliation Claim
Harvill also argues that there is sufficient evidence to support her claim that Westward
retaliated against her for filing a sexual harassment complaint. She contends that after she filed her
sexual harassment complaint, she heard her new supervisor say he would get a bonus if he ran her off;
a bogus racial harassment charge was brought against her; an unknown individual began taking
14
pictures of her outside of the offices; and the other supervisors and co-workers treated her in a hostile
manner. She argues that she was constructively discharged because all of these circumstances
combined to create intolerable working conditions, which ultimately caused her to resign on advice
of her doctor.
To establish a prima facie retaliation claim, Harvill must prove that: (1) she engaged in an
activity that Title VII protects; (2) Westward carried out an adverse employment action; and (3) a
causal nexus exists between her protected activity and Westward’s adverse action. Chaney v. New
Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999). The filing of an EEOC
complaint is clearly a protected activity within the meaning of the statute. Walker v. Thompson, 214
F.3d 615, 629 (5th Cir. 2000). Thus, Harvill has satisfied the first prong of her prima facie case.
Constructive discharge is the adverse employment action that is the basis for Harvill’s
retaliation claim. In order t o establish a prima facie case of retaliation based on constructive
discharge, Harvill “must prove that ‘working conditions would have been so difficult or unpleasant
that a reasonable person in [her] shoes would have felt compelled to resign.’”Landgraf v. USI Film
Products, 968 F.2d 427, 429-30 (5th Cir. 1992) (quoting Bourque v. Powell Electrical Mfg. Co., 617
F.2d 61, 65 (5th Cir.1980)).
In determining whether a reasonable employee would feel compelled to resign, we
have considered the relevancy of the following events:
(1) demotion; (2) reduction in salary; (3) reduction in job respo nsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to work under a younger
supervisor; (6) badgering, harassment, or humiliation by the employer calculated to
encourage the employee’s resignation; or (7) offers of early retirement [or continued
employment on terms less favorable than the employee’s former status] . . . .
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) (alteration in original) (quoting
Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir.2000)). “Discrimination alone, without
15
aggravating factors, is insufficient for a claim of constructive discharge . . . .” Kinney Shoe, 237 F.3d
at 566. Harvill “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.
The district court concluded that Harvill did not exhaust her administrative remedies as to
this claim because she failed to allege constructive discharge in her EEOC complaint. Consequently,
the court granted summary judgment to Westward on Harvill’s constructive discharge claim. Aside
from constructive discharge, Harvill has not alleged any adverse employment action that could serve
as a basis for a retaliation claim. Thus, the court held that her retaliation claim must fail because the
court could not consider her constructive discharge argument.
Even assuming arguendo that the district court could have considered her constructive
discharge argument, we still conclude that Harvill’s allegations of retaliatory conduct do not preclude
summary judgment. In her affidavit, Harvill asserts that she was “treated rudely and with general
hatefulness” by other supervisors and employees; that a man she did not know began taking pictures
of her; that a meritless racial harassment charge was brought against her; and that she heard a new
supervisor state that he would receive a bonus if he ran her off. Aside from conclusory allegations,
Harvill has presented no summary judgment evidence to substantiate her claims. See Ugalde v. W.A.
McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir. 1993). Moreover, even if we were to accept
these allegations, Harvill has not alleged any aggravating factors that would render the harassment
so intolerable that a reasonable employee would feel compelled to resign. See id.; Ward v. Bechtel
Corp., 102 F.3d 199, 202 (5th Cir. 1997). Accordingly, Harvill has not raised a genuine issue of
material fact as to the second prong of her prima facie case, i.e., whether she suffered an adverse
16
employment action, and the district court did not err in granting summary judgment to Westward on
this claim.
D. Fair Labor Standards Act Claim
Finally, Harvill argues that the district court erred in grant ing summary judgment for
Westward as to her FLSA claim for unpaid overtime because substantial evidence exists that she was
required to keep false time sheets, which resulted in her not being paid for approximately 210 hours
of overtime. The district court held that Harvill failed to present sufficient evidence that she was not
properly compensated for overtime work or that her employer was aware that she was engaging in
the unpaid overtime work.
The Fair Labor Standards Act mandates that “no employer shall employ any of his employees
. . . for a workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and one-half times the
regular rat e at which he is employed.” 29 U.S.C. § 207 (a)(1). “‘An employer who is armed wit
h
[knowledge that an employee is working overtime] cannot stand idly by and allow an employee to
perform overtime work without proper compensation, even if the employee does not make a claim
for the overtime compensation.’” Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995)
(alteration in original) (quoting Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th
Cir. 1981)). “[I]f the ‘employee fails to notify the employer or deliberately prevents the employer
from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours
is not a violation of § 207.’” Id. (quoting Forrester, 646 F.2d at 414).
An employee bringing an action pursuant to the FLSA, based on unpaid overtime
compensation, must first demonstrate that she has performed work for which she alleges she was not
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compensated. See Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687-88 (1946). An
employee has met her requisite burden of proof
if [she] proves that [she] has in fact performed work for which [she] was improperly
compensated and if [she] produces sufficient evidence to show the amount and extent
of that work as a matter of just and reasonable inference. The burden shifts to the
employer to come forward with evidence of the precise amount of work performed
or with evidence to negative the reasonableness of the inference to be drawn from the
employee’s evidence. If the employer fails to produce such evidence, the court may
then award damages to the employee even though the result may only be approximate.
Id.
In the district court, Harvill’s argument against summary judgment on her FLSA claim
consisted of her unsubstantiated assertions that French required her to turn in false time sheets, and
that Westward “clearly suffered or permitted” her to work overtime. She contended that it was up
to the jury to decide who was telling the truth. She offered no factual allegations at all to substantiate
her claim, and she presented no evidence of the amount or the extent of hours she worked without
compensation. Moreover, she presented no evidence that Westward was aware that she worked
overtime hours without compensation. On appeal, Harvill only adds to her argument the assertion that
she worked 210 hours of unpaid overtime. Again, she offers absolutely no evidence that she actually
worked the hours she alleges, or that Westward was aware that she worked overtime hours without
compensation. Harvill has failed to raise a genuine issue of material fact as to whether she went
uncompensated for overtime work. Accordingly, the district court did not err in granting summary
judgment for Westward on Harvill’s FLSA claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment for
Westward on Harvill’s sexual harassment, retaliation and Fair Labor Standards Act claims.
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