83 F.3d 118 (5th Cir. 1996), 95-30510, Oncale v. Sundowner Offshore Services, Inc.

Docket Nº:95-30510.
Citation:83 F.3d 118
Party Name:Joseph ONCALE, Plaintiff-Appellant, v. SUNDOWNER OFFSHORE SERVICES, INC., John Lyons, Danny Pippen, and Brandon Johnson, Defendants-Appellees.
Case Date:May 20, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 118

83 F.3d 118 (5th Cir. 1996)

Joseph ONCALE, Plaintiff-Appellant,

v.

SUNDOWNER OFFSHORE SERVICES, INC., John Lyons, Danny Pippen,

and Brandon Johnson, Defendants-Appellees.

No. 95-30510.

United States Court of Appeals, Fifth Circuit

May 20, 1996

Andre C. LaPlace, Baton Rouge, LA, Nicholas Canaday, III, Baton Rouge, LA, for Joseph Oncale, plaintiff-appellant.

Jeffrey L. Rogers, Christopher M. Brown, Brown, Parker & Leahy, Houston, TX, for defendants-appellees.

Mary L. Clark, Equal Employment Opportunity Commission, Washington, DC, for Equal Employment Opportunity Commission, amicus curiae.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH, DUHE, and DeMOSS, Circuit Judges.

DUHE, Circuit Judge:

Appellant Joseph Oncale filed this suit against Sundowner Offshore Services, Inc., ("Sundowner"), John Lyons, Danny Pippen and Brandon Johnson, alleging that he had been sexually harassed during his employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). The district court granted summary judgment in favor of the defendants and dismissed Oncale's case. Because our decision in Garcia v. Elf Atochem No. Am., 28 F.3d 446, 451-52 (5th Cir.1994), holds that same-sex harassment is not cognizable under Title VII, we affirm.

BACKGROUND

Joseph Oncale was employed by Sundowner on an offshore rig from August to November 1991. Oncale filed this Title VII action against Sundowner, John Lyons, his Sundowner supervisor, and Danny Pippen and Brandon Johnson, two Sundowner co-workers, alleging sexual harassment. Oncale alleges that the harassment included Pippen and Johnson restraining him while Lyons placed his penis on Oncale's neck, on one occasion, and on Oncale's arm, on another occasion; threats of homosexual rape by Lyons and Pippen; and the use of force by Lyons to push a bar of soap into Oncale's

Page 119

anus while Pippen restrained Oncale as he was showering on Sundowner premises. Oncale alleges both quid pro quo and hostile work environment sexual harassment. 1 Oncale quit his job at Sundowner soon after the shower incident.

The district court granted summary judgment on Oncale's Title VII claim, relying upon our statement in Garcia v. Elf Atochem No. Am., 28 F.3d 446, 451-52 (5th Cir.1994), that harassment by a male supervisor against a male subordinate does not state a claim under Title VII. Thus, the court concluded that it was "compelled to find that Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers." Finally, the court found that Oncale's co-workers, Pippen and Johnson, could not be held liable as "employers" under Title VII.

DISCUSSION

Precedential Value of Garcia

Title VII makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual's ... sex...." 42 U.S.C. § 2000e-2(a)(1). Appellant and the Equal Employment Opportunity Commission (as Amicus Curiae ) argue that Title VII's prohibition against sex discrimination and the Supreme Court's sexual harassment decisions are formulated in gender-neutral terms, and therefore, prohibit all discrimination because of sex, whether it is discrimination against men or women. See Harris v. Forklift Systems, Inc., 510 U.S. 17, ----, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (referring to "victims" of sexual harassment, and not just female victims, and adopting "reasonable person" standard for measuring offensiveness of work environment); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986) (" 'Surely a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.' ") (emphasis added) (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.1992)). Under this reading of the statute, so long as the plaintiff proves that the harassment is because of the victim's sex, the sex of the harasser and victim is irrelevant.

This panel, however, cannot review the merits of Appellant's Title VII argument on a clean slate. We are bound by our decision in Garcia v. Elf Atochem No. Am., 28 F.3d 446, 451-52 (5th Cir.1994), and must therefore affirm the district court. Although our analysis in Garcia has been rejected by various district courts, 2 we cannot overrule a prior panel's decision. In this Circuit, one panel may not overrule the decision, right or wrong, of a prior panel in the absence of an intervening contrary or superseding decision by the Court en banc or the Supreme Court. Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991).

This Circuit's same-sex Title VII jurisprudence began with Giddens v. Shell Oil Co., 12 F.3d 208 (5th Cir.1993) (per curiam) (unpublished), cert. denied, --- U.S. ----, 115 S.Ct. 311,...

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