UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-30673
Summary Calendar
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GEORGIA M. WOODS,
Plaintiff - Appellant
VERSUS
DELTA BEVERAGE GROUP, INC., doing
business as Delta Beverage Company,
Defendant - Appellee
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Appeal from the United States District Court
For the Western District of Louisiana
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December 11, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:
The Plaintiff, Georgia M. Woods (“Woods”), asserts claims for
sexual harassment in violation of Title VII and Louisiana law and
constructive discharge. The issue on appeal is whether Woods’
failure to notify the Defendant Delta Beverage Company (“Delta
Beverage”) about ongoing harassment after the July 7, 1998 meeting
prevents her from surviving summary judgment on her hostile working
1
environment claim. We conclude that the hostile working
environment claim does not survive summary judgment because Woods
did not follow the established company procedure for remedying her
complaints.
I. FACTS AND PROCEDURAL HISTORY
Woods began working as a part-time telephone sales clerk for
Delta Beverage on June 18, 1998. She started as a temporary
employee working through a temporary employment agency. Delta
Beverage hired her as a Delta Beverage employee a few weeks later.
Woods quit working for Delta Beverage on July 22, 1998.
Woods alleged that she was sexually harassed by a co-employee,
Gary Eddy, on a daily basis during the course of her employment at
Delta Beverage. She contends that, on a daily basis, Eddy rubbed
her shoulders and neck. She also contends that Eddy touched her
hair on one occasion, held her hand on one occasion, kissed her
hand on one occasion, and touched her blouse on one occasion.
Woods also contends that Eddy telephoned her home six to eight
times. However, she did not answer any of these calls.1
On July 6, Woods informed another employee, Nicy Gordon
(“Gordon”), that she was being harassed by Eddy and could not put
up with Eddy putting his hands on her anymore. At first, Gordon
informed her that she did not know what to do because her
1
Woods claims that the phone calls were from Eddy because a
Delta Beverage phone number showed up on her caller ID.
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supervisor, Greg Barrett, was on vacation. However, later that
day, Gordon asked Woods to come into work the next day for a
meeting about the subject.
On July 7, Eric Sherer and Bobby Smith, Delta Beverage
district managers, investigated Woods’ complaints concerning Eddy’s
behavior. Scherer and Smith met separately with Woods and Eddy.
They informed Eddy that his conduct was inappropriate and that his
actions would be noted in his employment file. They also warned
him that further similar behavior would lead to disciplinary
action, including termination. They told Woods that she should
notify them immediately if Eddy engaged in further inappropriate
behavior.
On July 8, Woods worked with Eddy all day long. At the end of
the day, one of the district managers called Woods. He asked her if
she was comfortable with the way the situation had been handled,
and, if she had experienced further problems with Eddy. She
informed him that she had not had any problems with Eddy on that
day.
Woods worked at Delta Beverage for two more weeks. During
this time period, Woods contends that Eddy continued his unwelcome
touching. However, Woods did not report the touching to Smith,
Scherer, or anyone else at Delta Beverage. On July 23, Woods did
not report to work. Gordon called to inquire why. Woods informed
Gordon that she was not feeling well.
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Woods missed several more days of work. Delta Beverage
attempted to contact her several times to find out why. She never
returned their calls, and never showed up for work again.
On June 19, 2000, Woods filed suit against Delta Beverage in
a Western District of Louisiana federal court. The complaint
asserted hostile work environment and constructive discharge claims
based upon Eddy’s conduct. On May 31, 2001, the district court
granted Delta Beverage’s motion for summary judgment on all claims.
The district court concurrently entered final judgment for Delta
Beverage. Woods subsequently filed a timely notice of appeal.
II. JURISDICTION
Woods appeals from the district court’s final judgment
dismissing with prejudice all of her claims. Thus, we have
jurisdiction under 28 U.S.C. § 1291.
III. STANDARD OF REVIEW
We review a district court’s decision to grant summary
judgment de novo, applying the same standards as the district
court. Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000).
Summary judgment is proper when there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law. See Fed. R. Civ. P. 56(c). Evidence is viewed in
the light most favorable to the nonmoving party and all reasonable
inferences are drawn in its favor. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000).
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IV. DISCUSSION
A. Hostile Working Environment
A plaintiff may establish a Title VII violation by proving
that sex discrimination has created a hostile or abusive working
environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66
(1986). In order to establish a hostile working environment claim,
a plaintiff must prove five elements: (1) the employee belonged to
a protected class; (2) the employee was subject to unwelcome sexual
harassment; (3) the harassment was based on sex; (4) the harassment
affected a “term, condition, or privilege” of employment; and (5)
the employer knew or should have known of the harassment and failed
to take prompt remedial action.2 Shepherd v. Comptroller of Public
Accounts of the State of Texas, 168 F.3d 871, 873 (5th Cir. 1999).
In the instant case, Woods has satisfied the first three
elements. Therefore, only two issues need be addressed: (1)
whether Woods has raised a genuine issue of material fact that the
alleged harassment was severe or pervasive enough to alter a “term,
2
In Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999),
we drew a distinction between cases in which an employee asserts a
Title VII sexual harassment claim alleging that a supervisor with
immediate (or successively higher) authority harassed her and cases
in which the harasser is a co-worker. In the former situation, the
employee need only satisfy the first four elements of the
aforementioned test. Id. In the latter situation, we made clear
that the employee must satisfy all five elements. Id. at 509, n.3.
Here, it is undisputed that Eddy was a route settlement clerk with
no supervisory authority over Woods. Indeed, Appellant’s brief
repeatedly refers to Eddy as merely a co-worker. Therefore, Woods
must satisfy all five elements.
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condition, or privilege” of her employment; and (2) whether Woods
has raised a genuine issue of material fact that Delta Beverage
failed to take prompt remedial action.
1. Did Eddy’s harassment affect a “term, condition, or privilege”
of Woods’ employment?
In order to be actionable, Eddy’s harassment must have created
an environment that a reasonable person would find hostile or
abusive. Whether a reasonable person would find the environment to
be hostile or abusive should be evaluated by looking at the
totality of the circumstances. This includes 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 Systems, Inc., 510 U.S. 17, 21-22
(1993).
The district court determined that a reasonable person would
not have found Eddy’s actions to be either hostile or abusive for
two reasons. First, the court noted that Woods was only subjected
to unwelcome touching for a few minutes each day. Second, the
court found that Woods had failed to address how or if her work
performance was affected by Eddy’s roving hands.
Whether the complained of conduct qualifies as severe or
pervasive under our hostile working environment jurisprudence is a
close question. Because the district court’s decision can be
upheld based upon the prompt remedial action element, we need not
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rule on whether a reasonable woman could deem Eddy’s conduct to be
severe enough to alter the terms or conditions of her employment.
However, we will assume arguendo that Woods has raised a fact issue
on the fourth element.
2. Prompt Remedial Action
Woods admits that she first reported Eddy’s actions to company
personnel on July 6. The next day a meeting took place to address
the alleged harassment. Delta Beverage told Eddy to stop his
conduct or face further disciplinary action, including termination.
Delta Beverage told Woods to inform Smith or Scherer if further
unwelcome touching occurred. Woods admits that she never informed
them of any further problems with Eddy.
Because we view the facts in the light most favorable to
Woods, we assume that Eddy continued to harass Woods after the July
7 meeting. Even so, Delta Beverage cannot be held liable for
conduct of which it had no knowledge. Woods had the obligation to
report the alleged harassment to Delta Beverage as she had been
instructed. Her failure to do so is fatal to her case.3
3
In Title VII sexual harassment cases where the alleged
harasser is a supervisor, an employer may assert the following
affirmative defense: (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
preventative or corrective opportunities provided by the employer
or to avoid harm otherwise. Burlington Ind. v. Ellerth, 524 U.S.
742, 765 (1998). As mentioned previously, this is not a supervisor
liability case. However, the second prong of the affirmative
defense is instructive to our “co-worker” liability case. To avoid
further harm after July 7, Woods needed to reasonably take
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Woods bases her contention that Delta Beverage failed to take
prompt remedial action on two factors. First, she claims that
Gordon told her that Gordon and another female employee had been
been subject to inappropriate behavior by Eddy. Woods claims this
demonstrates that Delta Beverage had prior knowledge of Eddy’s
proclivities toward unwelcome touching.
Even if Gordon’s statements could be deemed admissible
evidence and accepted as true, her argument fails. It is
undisputed that Eddy’s harassment always occurred in private.
Moreover, there is no evidence to suggest that any employee
reported any Eddy harassment to Delta Beverage prior to Woods’ July
6 report. Therefore, there is no basis for a finding that Delta
Beverage had knowledge of Eddy’s proclivity towards unwelcome
touching prior to July 6.
Second, Woods contends that Delta Beverage should be liable
because the actions the company took against Eddy on July 7 did not
stop the harassment. This argument is also without merit. On July
7, Delta Beverage was not legally obligated to fire Eddy or
separate him from work interaction with Woods. See Mota v.
University of Texas Houston Health Science Center, 261 F.3d 512,
525 (noting that an employer need not use the most serious sanction
available to punish a sexual harassment offender). Delta Beverage
advantage of the corrective opportunities provided by her employer.
Woods cannot have expected Delta Beverage to solve her problem when
it had no knowledge that she continued to suffer harassment.
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took prompt remedial action because (1) district managers told Eddy
to stop the unwelcome touching and informed him that failure to do
so would result in further discipline, including termination; (2)
on July 8, a manager asked Woods whether the harassment had stopped
and was told there were “no problems on that day”; and (3)
supervisors told Woods to inform them of any further harassment.4
Of course, there is a point at which an employer will be
liable for failing to end harassment notwithstanding their
admonitions to the employee to report further harassment to company
supervisors. For example, assume that Woods had informed Delta
Beverage after July 7 that Eddy was continuing to harass her.
Assume further that Delta Beverage responded by simply giving Eddy
another verbal warning and telling Woods to inform the supervisors
if the harassment continues. At that point, Woods might have an
objective basis for concluding that further reports of harassment
would be futile. Under this hypothetical scenario, Delta
Beverage’s contention that Woods should be required to again inform
the company that Eddy was harassing her would be less persuasive
because it would seem as though the company did not really intend
to stop the harassment. Stated another way, once it becomes
objectively obvious that the employer has no real intention of
4
Whether Woods received a copy of Delta Beverage’s sexual
harassment policy is irrelevant because Woods had actual knowledge
of what she should do if Eddy engaged in further inappropriate
touching.
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stopping the harassment, the harassed employee is not obliged to go
through the wasted motion of reporting the harassment. Clearly,
however, that was not the situation in the case at bar.
In short, Delta Beverage took reasonable steps on July 7 to
correct the harassment. Woods had an obligation to give the
company another opportunity to remedy the problem before deciding
that she could not work there anymore. Therefore, Woods has not
raised a genuine fact issue on the prompt remedial action element.
B. CONSTRUCTIVE DISCHARGE
To prove a constructive discharge, Woods must show that a
“reasonable person in [her] shoes would have felt compelled to
resign.” Faruki v. Parsons, S.I.P., Inc., 123 F.3d 315, 319 (5th
Cir. 1997). Moreover, to be actionable, Woods must demonstrate a
“greater severity or pervasiveness of harassment than the minimum
required to prove a hostile work environment claim.” Benningfield
v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998).
As a matter of law, the type of harassment experienced by
Woods does not satisfy this higher standard. A reasonable woman
experiencing the type of harassment complained of by Woods would
not have felt compelled to resign. A reasonable woman would have
felt compelled to report Eddy’s alleged post-July 7 harassment to
her supervisors. Therefore, we find that the district court did
not err in granting summary judgment on Woods’ constructive
discharge claim.
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V. CONCLUSION
Woods has not raised a genuine issue of fact on the prompt
remedial action element. Therefore, her hostile working
environment claim under both Title VII and Louisiana statutory law
fails as a matter of law. The constructive discharge claim also
fails as a matter of law. Therefore, the district court’s judgment
is AFFIRMED.
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Woods v. Delta Beverage Group, Inc.
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-12-11
Citations: 274 F.3d 295
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