Harvill v. Westward Communications, L.L.C.

Decision Date13 December 2005
Docket NumberNo. 04-40418.,04-40418.
Citation433 F.3d 428
PartiesMolly HARVILL, Plaintiff-Appellant, v. WESTWARD COMMUNICATIONS, L.L.C., et al., Defendants, Westward Communications, L.L.C.; Westward Communications, LP, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Alex Arthur Castetter (argued), Stuckey, Garrigan & Castetter, Nacogdoches, TX, for Harvill.

Felicity A. Fowler, Matthew Thomas Deffebach (argued), Haynes & Boone, Houston, TX, for Defendants-Appellees.

John Foster Suhre (argued), EEOC, Washington, DC, for EEOC, Amicus Curiae.

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. § 2000e 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 Ladonna 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 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 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 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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) the 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 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, 106 S.Ct. 2399, 91 L.Ed.2d 49 (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, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). We have also considered whether the complained of conduct undermines the plaintiff's workplace competence. Hockman v. Westward Commc'ns...

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