Davenport v. Edward D. Jones & Co., 17-30388

• Decision Date: 16 May 2018
• Docket Number: No. 17-30388,17-30388
• Citation: 891 F.3d 162
• Parties: Tyanne DAVENPORT, Plaintiff-Appellant v. EDWARD D. JONES & COMPANY, L.P., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

891 F.3d 162

Tyanne DAVENPORT, Plaintiff-Appellant
v.
EDWARD D. JONES & COMPANY, L.P., Defendant-Appellee.

No. 17-30388

United States Court of Appeals, Fifth Circuit.

Filed May 16, 2018

Christina Leigh Carroll, Robein, Urann, Spencer, Picard & Cangemi, A.P.L.C., Metairie, LA, for Plaintiff-Appellant

Monique Gougisha Doucette, Atoyia S. Harris, Christopher Earl Moore, Esq., Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New Orleans, LA, for Defendant-Appellee

Julie Loraine Gantz, U.S. Equal Employment Opportunity Commission, Office of General Counsel/Appellate Services, Washington, DC, for Amicus Curiae Equal Employment Opportunity Commission

Before DAVIS, JONES, and HIGGINSON, Circuit Judges.

W. EUGENE DAVIS, Senior Circuit Judge.

Tyanne Davenport ("Davenport") appeals the district court’s order granting summary judgment in favor of Edward Jones & Company, L.P. ("Edward Jones"), on Davenport’s two claims of quid pro quo

891 F.3d 165

sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . ("Title VII"), and her state law false light invasion of privacy claim. The district court dismissed Davenport’s constructive discharge quid pro quo claim because it was unexhausted and dismissed Davenport’s bonus-based quid pro quo claim because, it concluded, this circuit does not recognize quid pro quo sexual harassment claims based on a supervisor’s request that a subordinate date a third-party in exchange for monetary bonuses. The district court found that, in any event, Davenport had not offered sufficient evidence to create a genuine dispute as to whether she was denied a bonus, i.e., whether she suffered the tangible employment action required to make a quid pro quo Title VII claim actionable. The district court also dismissed Davenport’s state law invasion of privacy claim because Davenport failed to show that her supervisor’s conduct unreasonably invaded her privacy interest. Though this circuit recognizes quid pro quo harassment claims akin to Davenport’s bonus-based claim, because we find that Davenport did not create a genuine dispute as to whether she suffered a tangible employment action, and because we agree that Davenport did not suffer an actionable invasion of privacy, we AFFIRM the district court’s order.

I.

On October 13, 2014, Coyne hired Davenport as the Branch Office Administrator for his financial planning office.¹ During Davenport’s tenure, Coyne created a volatile workplace relationship. Coyne insulted Davenport and shouted at her on several occasions, and he used profanity to describe her personality and performance.² Despite his unsavory comments, Coyne conducted a "Trainee Milestone Review" of Davenport on March 31, 2015, and he approved a $400 bonus because Davenport was "exceeding expectations."

Sometime in September, Coyne’s comments became sexual in nature. After learning that Harry Fisher ("Fisher"), a wealthy potential client, was interested in dating Davenport, Coyne told Davenport that she should "date" Fisher in exchange for "big bonuses." Davenport responded that she had a boyfriend and that she was not interested in dating Fisher. Coyne repeated his offer approximately three more times within thirty days, but Davenport never dated Fisher.

On October 1, 2015, Coyne completed Davenport’s annual "Performance Review." Coyne rated Davenport as "exceeding expectations," and he recommended that she receive a 4% salary increase. However, Davenport did not receive a bonus.

On October 27, 2015, at an informal meeting between Coyne, Fisher, and another Edward Jones financial advisor, Kirk Delaune, Davenport interjected that Fisher should switch his account to Coyne’s office. Coyne then, in front of Fisher, suggested to Davenport that "maybe we can get some nudie pictures of you ... that might entice him." There were no nude pictures of Davenport. Nevertheless, she was offended and embarrassed.

The following day, Davenport reported the "nude picture" incident to Richie Kernion ("Kernion"),

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the district manager at Edward Jones. Kernion forwarded Davenport’s complaint to Susan Miller ("Miller"), an associate relations representative at Edward Jones. Miller, in turn, contacted Davenport, who described the above interactions between her and Coyne. Miller then formally opened an investigation into Coyne’s management practices, and Davenport applied for, and was granted, an extended leave of absence.

On November 5, 2015, Davenport filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"). In her charge, Davenport briefly described the "nude picture" incident and her resulting leave of absence. She did not mention Coyne’s alleged bonus offers.

Over the next two and a half months, Davenport consulted a therapist who advised Edward Jones that Davenport should not return to Coyne’s office due to emotional trauma stemming from Coyne’s behavior. Davenport then requested a transfer to a full-time administrator position at another office. Miller informed Davenport that such a transfer was impossible and that Davenport needed to return to work in order for Edwards Jones to complete its investigation. Miller advised Davenport that she could apply for other full-time positions at Edward Jones, but that the application process would likely be delayed given Davenport’s "continuous leave of absence" status.

Davenport formally resigned from Edward Jones on January 19, 2016. After receiving Davenport’s resignation, Edward Jones sent her two letters regarding employment options. The letters, dated January 20, 2016 and February 3, 2016, respectively, gave Davenport the option either (1) to "transfer" to another branch as an "on-call" Branch Office Administrator, which was a part-time position, or (2) to communicate with a recruiting contact regarding other full-time positions at Edward Jones. Davenport declined to pursue either option and indicated that she did not have any desire to return to Edward Jones as an employee. Davenport promptly secured full-time employment with another company.

Davenport received a notice of right-to-sue from the EEOC on April 25, 2016. She timely filed suit in the district court, alleging quid pro quo and hostile work environment sexual harassment claims under Title VII, as well as state-law claims of sexual discrimination, defamation, and "false light" invasion of privacy. Edward Jones moved for summary judgment on each of Davenport’s claims, and, on May 3, 2017, the district court granted Edward Jones’s motion in its entirety. The district court reasoned that (1) Davenport’s quid pro quo claim based on her "constructive discharge" from Edward Jones failed because she did not administratively exhaust that claim, (2) Davenport’s quid pro quo claim based on the receipt of bonuses in exchange for acquiescence to sexual advances failed because "Fifth Circuit precedent implies that the sexual advances related to the alleged tangible employment action must relate to advances with the supervisor ," and also because Davenport did not show that she had been denied a bonus, (3) Davenport’s "hostile work environment" claim failed because Coyne’s behavior was not "severe" or "pervasive," and (4) Davenport’s invasion of privacy and defamation claims failed because Coyne’s nude picture comment did not demonstrate "malice" and the comment, standing alone, did not seriously interfere with Davenport’s privacy. Davenport timely appealed only the constructive discharge quid pro quo claim, the bonus-based quid pro quo claim, and the state law invasion of privacy claim.

891 F.3d 167

II.

We review the district court’s grant of summary judgment de novo applying the same standards as the district court.³ The court "must consider both direct and circumstantial evidence but may not make ‘credibility assessments,’ which are the exclusive province of the trier of fact."⁴ That is, "a ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’ "⁵ In so determining, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor."⁶ However, the court need not credit evidence that is "merely colorable" or not significantly probative.⁷ Summary judgment is appropriate only if, viewing the evidence in the light most favorable to the nonmovant, "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."⁸

III.

A. Davenport’s constructive discharge quid pro quo claim

Davenport first argues that the district court improperly dismissed her constructive discharge quid pro quo claim. In the district court, Davenport asserted that she suffered quid pro quo sexual harassment because she was constructively discharged from Edward Jones after she refused to date Fisher. Edward Jones countered that Davenport had not exhausted her administrative remedies, and that, in any event, Davenport could not demonstrate that her work conditions were so intolerable...