UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 96-11568

___________________________

KAREN WEBB,

Plaintiff-Appellant,

VERSUS

CARDIOTHORACIC SURGERY ASSOCIATES OF NORTH TEXAS, P.A.; MICHAEL

MACK, M.D.,

Defendants-Appellees.

___________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

___________________________________________________ April 30, 1998

Before DAVIS, WIENER, and PARKER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Karen Webb appeals the district court’s grant of summary

judgment to Defendants, Cardiothoracic Surgery Associates of North

Texas, P.A. and Dr. Michael Mack, dismissing her claims of sexual

harassment and retaliation in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.

I.

Karen Webb began working for Cardiothoracic Surgery Associates

of North Texas, P.A. (“CSANT”) as an insurance clerk in April of

1986. Webb worked in the Dallas area at the Medical City facility.

After approximately one year, CSANT gave her a new position

scheduling surgery for the physicians, one of whom was Dr. Michael

Mack. She worked in this position for approximately four years2

until the spring of 1991, at which time she began working as Mack’s

secretary.

Webb worked for Mack exclusively until late 1992 when she took

on the additional duties of Office Manager at the Medical City

facility. In the fall of 1993, CSANT determined that Webb’s dual

roles were too mu ch for one person and asked her to choose one

position. She elected to take the office manager position. Webb

contends that she chose the office manager position in an effort to

reduce her contact with Mack.

Webb alleges that Mack be gan sexually harassing her in the

spring of 1991, when she began working as his s ecretary. She

asserts that Mack continued this conduct until January of 1995,

when she told Lori Swalm, CSANT’s Director of Human Resources,

about Mack’s behavior. Mack’s offensive conduct included touching

Webb on the shoulder when he spoke to her and standing so close to

her that he would rub against her shoulder. Webb admits, however,

that she i nitially did not consider this “touching” to be

intentionally offensive or sexual in nature.

In January of 1993, both Webb and Mack, together with other

CSANT personn el, attended a business meeting in San Antonio.

According to Webb, late one evening at a bar Mack approached her,

hugged her, and whispered his hotel room number into her ear

several times. Mack allegedly asked Webb to meet him there.

Later, after everyone had left the bar and returned to the hotel,

Mack telephoned Webb in her room and asked why she had not come to

his room. Webb then promised Mack that she would indeed come to

his room. However, she never went to Mack’s room. Neither Mack3

nor Webb ever discussed anything related to this incident again.

Nor did Webb complain about this inciden t; rather, she remained

silent in the hope that by ignoring “it,” the situation would “go

away.”

In February of 1993, Mack called Webb into his office.

According to Webb, Mack asked her to close the door to the office

and to sit on his side of the des k. Webb complied with this

request. Mack then discussed several problems that he was having

related to CSANT and conveyed to Webb that he was “feeling down.”

Apparently in an attempt to empathize with Mack, Webb then told him

about her pending separation fromher husband. After discussing

issues relating to Webb’s personal finances, Mack asked Webb about

her home mortgage. Webb told Mack that she would probably have to

refinance her mortgage because of the separation. Mack responded

by telling Webb not to worry about money because he would give her

money without anyone else knowing. Webb then stood to leave, at

which time Mack thanked her for listening and allegedly placed his

hand on her leg and touched the inside of her thigh under her

skirt.

Before January of 1995, Webb had not complained to any CSANT

personnel regarding Mack’s behavior. Almost two years after the

incidents in January and February of 1993, Lori Swalm asked Webb to

“fill in” temporarily as Mack’s secretary. Webb declined this

request and proceeded to tell Swalm about the San Antonio incident

in partial explanation for why she did not w ant to have close

contact with Mack. Webb concedes that Swalm was very sympathetic

to her complaint and did not insist that Webb work closely with1 Prior to this time, CSANT had only a general antiharassment policy delineated in its employee handbook. The policy

designated Lori Swalm as the CSANT employee to be contacted by

other employees with complaints about harassment.

2 Webb stated that she did not believe that Mack would move his patients from the Plano office. Webb further stated that she

was “horribly embarrassed and humiliated” that CSANT personnel knew

what had happened.

4 Mack. After this conversation, Swalm instituted a specific sexual

harassment policy for CSANT and the CSANT doctors participated in

s ome training about sexual harassment. 1 Webb also concedes that

Mack’s offensive touching ceased after her conversation with Swalm.

As office manager, Webb contin ued to have some contact with

Mack and, according to Webb, that relationship did not improve.

Webb alleges that Mack was rude to her both in person and on the

telephone and belittled her in front of patients and coemployees.

In April of 1995, Mack confronted Webb outside an examining room,

where, according to Webb, he spoke to her in a very demeaning and

belittling tone and threw a magazine at the floor in front of her.

Apparently, this was in response to Mack’s frustratio ns over

repeated requests that magazines not be put on his desk. Shortly

after this incident, Webb called the office and reported that she

was sick. On the advice of her attorney, she never returned to

work. CSANT placed Webb on a leave of absence while it

investigated her complaint.

After concluding its investigation, CSANT offered to move Webb

to a comparable position in its Plano office. CSANT also offered

to have all of Mack’s patients report to another location so that

Mack would never be required to visit the Plano office. For a

variety of reasons, Webb declined the offer. 2 Webb formally5

resigned effective June 30, 1995 and promptly filed her charge of

discrimination with the Equal Employment Opportunity Commission

(“EEOC”) and the Texas Commission on Human Rights (“TCHR”) on July

17, 1995. After obtaining a notice of right to sue from the EEOC,

Webb filed suit against CSANT and Dr. Michael Mack, alleging that

she was subjected to sexual harassment and retaliation in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to

2000e-17

. Webb also asserted a claim under Texas law for

intentional infliction of emotional distress. Following discovery,

the Defe ndants filed a Motion for Summary Judgment, which the

district court granted, resulting in the dismissal of Webb’s suit.

This appeal followed.

II.

A.

The standard of review following the grant or denial of

summary judgment is de novo

. C oleman v. Houston Indep. Sch. Dist.

,

1 13 F.3d 528, 533 (5th Cir. 1997). The moving party bears the

initial responsibility of informing the district court of the basis

for its motion and identifying those portions of the record which

it believes demonstrate the absence of a genuine issue of material

fact. C elotex Corp. v. Catrett

, 477 U.S. 317, 323, 106 S. Ct 2548,

2553 (1986). Summary judgment is proper if the evidence shows the

existence of no genuine issue of material fact and that the moving

party is entitled to a judgment as a matter of law. Fed. R. Civ.

P. 56(c). While we consider the evidence with all reasonable

inferences in the light most favorable to the nonmovant, Coleman

,

113 F.3d at 533, the nonmoving party must come forward with6

specific facts showing that there is a genuine issue for trial.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S.

574, 587, 106 S. Ct. 1348, 1356 (1986). This requires the

nonmoving party to do “more than simply show that t here is some

metaphysical doubt as to the material facts.” Id. at 586, 106 S.

Ct. at 1356. The nonmoving party must “go beyond the pleadings and

by her own affidavits, or by the ‘de positions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts

showing that there is a genuine issue for trial.’” C elotex Corp.

,

477 U.S. at 324, 106 S. Ct at 2553. If the record taken as a whole

could not lead a rational trier of fact to find for the nonmoving

party, there is no genuine issue for trial. S zabo v. Errisson

, 68

F.3d 940, 942 (5th Cir. 1995).

B.

In granting summary judgment for the Defendants, the district

court reasoned that: (1) Dr. Mack could not be held individually

liable because he did not qualify as an “employer” under Title VII;

(2) the incidents in January and February of 1993 were time barred;

(3) CSANT took prompt remedial action as a matter of law with

respect to Webb’s claims of sexual harassment; (4) Webb failed to

show a causal connection between her complaints of and opposition

to Mack’s conduct and any adverse employment action so as to

establish retaliation; and (5) Mack’s conduct did not rise to the

level of “outrageous conduct” in order to state a claim under Texas

law for intentional infliction of emotional distress. We consider

below Webb’s arguments challenging the correctness of the district3 The district court granted summary judgment in favor of Dr.

Mack on the ground that he was not an employer within the meaning

of Title VII and therefore had no individual liability. The grant

of summary judgment also included the dismissal of Webb’s state law

claim of intentional infliction of emotional distress. Webb has

not briefed either issue. Thus, we consider these issues not

“presented for review” un der Fed. R. App. P. 28(a)(4) and

consequently waived. C armon v. Lubrizol Corp.

, 17 F.3d 791, 794

(5th Cir. 1994) (per curiam); accord American States Ins. Co. v. Bailey

, 133 F.3d 363, 372 (5th Cir. 1998); Atwood v. Union Carbide

Corp. , 847 F.2d 278, 279-80 (5th Cir. 1988).

7 court’s ruling. 3

C.

Initially, Webb challenges the district court’s conclusion

that the incidents in January and February of 1993 were timebarred. Webb argues that the district court erred when it found

that these incidents were discrete acts of discrimination which

triggered the start of the relevant limitations period. Webb

contends that these incidents were part of a continuing violation

and should not have been considered time-barred.

A Title VII plaintiff mus t file a charge of discrimination

with the EEOC within 180 days “after the alleged unlawful

employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1); s ee also

Berry v. Board of Supervisors of L.S.U. , 715 F.2d 971 (5th Cir.

1983). However, if the plaintiff has “instituted proceedings with

a State [sic] or loc al agency with authority to grant or seek

relief from such practice,” the limitations period for filing a

charge with the EEOC extends to 300 days. 42 U.S.C. § 2000e5(e)(1); see also Griffin v. City of Dallas

, 26 F.3d 610 (5th Cir.

1994). Because Webb instituted proceedings with the TCHR, the

relevant period of limitations on her claims is 300 d ays. S ee

Griffin , 26 F.3d at 612-13.8

Congress intended the limitations period contained in § 2000e5(e)(1) to act as a statute of limitations. Zipes v. Trans World

Airlines, Inc

, 455 U.S. 385, 393-94, 102 S. Ct. 1127, 1132-33

(1982); see also United Air Lines, Inc. v. Evans

, 4 31 U.S. 553,

558, 97 S . Ct. 1885, 1889 (1977) (“A discriminatory act which is

not made the basis for a timely charge is the legal equivalent of

a discriminator y act which occurred before the statute was

passed.”). A Title VII plaintiff who has instituted proceedings

with a state or local agency c annot sustain a claim of sexual

h arassment based upon incidents that occurred more than 300 d ays

b efore the filing of a charge of discrimination. S ee Mess er v.

Meno

, 130 F.3d 130, 134 (5th Cir. 1997). Webb filed her initial

charge of discrimination on July 17 , 1995. Thus, she may only

recover under Title VII for conduct that occurred after September

20, 1994, 300 days before the filing of her charge.

Webb argues that Mack’s conduct in January an d February of

1993 should be considered even though it occurred more than 300

days before her charge of dis crimination was lodged because this

conduct was part of a continuing violation. Courts have utilized

t he theory of a continuing violation in certain excepti onal

circumstances when applying the limitations period contained in

§ 2000e-5(e)(1). See Messer , 130 F.3d at 134-35. This equitable

exception arises “[w]here the unlawful employment practice

manifests itself over time, rather than as a series of discrete

acts.” W altman v. International Paper Co.

, 875 F.2d 468, 474 (5th

Cir. 1989) (quoting Abrams v. Baylor College of Medicine

, 805 F.2d

528, 532 (5th Cir. 1986)). Application of this theory relieves a4 Other circuits share this view. S ee, e.g.

, Speer v. Rand

M cNally & Co. , 123 F.3d 658, 663-64 (7th Cir. 1997) (refusing to

apply continuing violation theory when plaintiff knew the nature of

the discriminatory acts); Van Zant v. KLM Royal Dutch Airlines

, 80

F.3d 708, 713 (2d Cir. 1996) (“The timeliness of a discrimination

claim is to be measured from the date the claimant had notice of

the allegedly discriminatory action.”); S abree v. United Bh d. of

Carpenters and Joiners Local No. 33

, 921 F.2d 396, 402 (1st Cir.

1990) (“A knowing plaintiff has an obligation to file promptly or

lose his claim. This can be distinguished from a plaintiff who is

unable to appreciate that he is being discriminated against until

he has lived through a series of acts and is thereby able to

perceive the overall discriminatory pattern.”).

9 Title VII plaintiff from the burden of proving that the entire

violation occ urred within the actionable period provided the

plaintiff can show a series of related acts, one or more of which

falls within the limitations period. Messer , 130 F.3d at 134-35.

The district court concluded t hat the events of January and

February of 1993 should have put Webb on notice that she was a

victim of sexual harassment without the necessity of learning

additional facts. Consequently, the district court rejected Webb’s

argument that Mack’s conduct was part of a series of related acts

constituting a continuing violation. We agree. As we have

previously stated,

[t]he core idea [of the continuing violation theory] is

that equitable considerations may very well require that

the filing periods not begin to run until facts

supportive of a Title VII charge or civil rights action

are or should be apparent to a reasonably prudent person similarly situated. The focus is on what event, in

fairness and logic, should have alerted the average lay

person to act to protect his rights.

Glass v. Petro-Tex Chem. Corp.

, 757 F.2d 1554, 1560-61 (5th Cir.

1985) (citations omitted); see also Berry , 715 F.2d at 981. 4

Here, the summary judgment evidence reflects that Webb was

immediately aware of the severity of Mack’s conduct in January and10

February of 1993. The district court based its decision on Webb’s

own depositio n testimony describing her perception of Mack’s

conduct. Webb stated that she knew that Mack’s January 1993

conduct was sexual in nature when he tried to get Webb to come to

his hotel room in San Antonio. Further, she stated that she was

offended by his behavior. Webb also understood Mack’s conduct at

the February 1993 meeting to be a sexual gesture. After this

meeting, Webb was “shocked and frightened.” Even if the January

incident at the bar and h otel in San Antonio was insufficient to

put Webb on notice that her employment might be affected by Mack’s

conduct, when the incident in Mack’s office occurred only weeks

later, Webb was on notice that Mack’s conduct would affect her

employment. Based on this factual predicate, we agree with the

district court that Webb needed no additional facts after these two

encounters to understand that Mack was sexually h arassing her.

Webb’s full knowledge of Mack’s acts in January and February of

1993 therefore triggered Webb’s duty to assert her rights.

In summary, Webb was aware and k new of facts in February of

1993 that were supportive of a Title VII charge of an unlawful

employment practice. The district court correctly found that no

genuine issues of material fact existed with respect to Webb’s

knowl edge and understanding of Mack’s conduct. Webb therefore

cannot rely on th e equitable exception of a continuing violation

and the district co urt correctly concluded that Mack’s conduct

prior to September 20, 1994 was time-barred.

D.

Webb next challenges the district court’s determination that5 Because the summary judgment evidence does not show that

Webb gave notice to Mack that his conduct was unwelcome, we need

not decide the difficult question of whether it is proper to impute

the actions and knowledge of Dr. Mack, a founder, officer, and

executive committee member of CSANT, to Webb's employer.

11 CSANT took prompt remedial action that insulated it from liability

on Webb’s hostile work environment claim.

When an employee complains of a hostile work environment, an

employer may insulate itself from Title VII liabili ty by taking

prompt action to remedy the complaint. H irras v. National R.R.

Passenger Corp.

, 95 F.3d 396, 399 (5th Cir. 1996); see also Waymire

v. Harris County

, 86 F.3d 424 (5th Cir. 1996); Nash v. Electrospace

Sys., Inc.

, 9 F.3d 401 (5th Cir. 1993). In her appeal, Webb argues

that CSANT, through Mack, was on notice in February of 1993 that

she was being subject ed to a hostile work environment.

Essentially, Webb argues that notice to Mack in January and

February of 1993 that his sexual overtures were unwelcome

consti tuted notice to CSANT of an unlawful employment practice.

Although Webb does not challenge the adequacy of CSANT’s responses

in January of 1995, she argues that this response was not prompt as

a matter of law. Assuming without deciding that notice to Mack

served as notice to CSANT, the summary judgment evidence does not

demonstrate that Webb ever gave notice to Mack that she considered

his conduct to be unwelcome sexual harassment. 5

As we stated above, Webb may only complain of conduct that

occurred during the actionable period, that is after September 20,

1994. Webb never made complaints to Mack about his behavior during

this time period. More particularly, Webb did not tell Mack not to

stand close to her, or not to brush against her when he spoke with6 Webb also argues for the first time on appeal that CSANT

had constructive knowledge that Mack’s behavior was unwelcome. We

do not consider arguments advanced for the first time on appeal.

Mor eover, we find no summary judgment evidence that anyone other

than Webb and Mack could have known of the complained of conduct

between September 20, 1994 and January of 1995.

12 her, or that his conduct made her uncomfortable. The first

complaint Webb made was to Lori Swalm in January of 1995. Once she

complained to Ms. Swalm, Webb concedes that Mack’s of fensive

conduct stopped. We agree with the district court that based upon

the summary judgment evidence, CSANT took prompt remedial action as

a matter of law.

Webb argues that she complained to Mack as early as January of

1993. Essentially, Webb alleges that her refusal to go to Mack’s

hotel room was an implied complaint which put Mack on notice that

his conduct was unwelcome. Even if this refusal could constitute

a complaint, the incident in January of 1993 is time-barred. A

complaint about time-barred conduct does not satisfy the employee's

duty. The employee must complain about the actionable conduct so

that the employer will have an opportunity to remedy the unlawful

employment practice. Webb does not point to any summary judgment

evidence from which we could infer that Webb “complained” of Mack’s

post-September 20, 1994 conduct. 6

E.

With respect to Webb’s quid pro quo claim, we elect to affirm

the grant of summary judgment on a different ground than that

relied upon by the district court. See Hetzel v. Bethlehem Steel

Corp. , 50 F.3d 360, 363 (5th Cir. 1995); Thompson v. Georgia Pac.

Corp. , 993 F.2d 1166, 1167 (5th Cir. 1993).7 The Supreme Court has recently cautioned against the

expansion of Title VII into a general civility code. Oncale v.

Sundowner Offshore Servs., Inc.

, --- U.S. ---, 118 S. Ct. 998,

1002-03 (1998).

13 To succeed in a quid pro quo claim, a plaintiff must show that

the harassment complained of affected tangible aspects of the

compensation, terms, conditions, or privileges of employment.

Jones v. Flagship Int’l.

, 793 F.2d 714, 722 (5th Cir. 1986); accord

Sanders v . Casa View Baptist Church , 134 F.3d 331, 339 (5th Cir.

1998). Webb argues that Mack treated her rudely by shouting at her

and throwing a magazine at her feet and that this constitutes a

tangible job detriment. We disagree. Webb does not complain that

her pay was affected, that her job duties chang ed in a negative

way, or that she failed to receive a promotion she sought. Webb

was promoted to the position of Office Manager in the fall of 1993

and remained in that position until she resigned in June of 1995.

Mac k ’s evaluations of Webb’s work remained consistently high.

Although Mack was frequently rude and abrasive to Webb and other

CSANT employees, to state a claim for quid pro quo sexual

harassment Webb must do more than simply demonstrate that Mack was

a rude or uncivil boss. 7 S ee Sanders

, 134 F.3d at 339 (finding

mild criticism of work and threats of not being promoted to

p ositions that did not exist insufficient to constitute tangible

job detriment); Robinson v. City of Pittsburgh

, 120 F.3d 1286,

1296-97 (3d Cir. 1997) (“[N]ot every insult, sli ght, or

unpleasantness gives rise to a valid Title VII claim.”); Farley v.

American Cast Iron Pipe Co.

, 115 F.3d 1548, 1552-53 (11th Cir.

1997) (finding behavior consisting of criticizing asp ects of14

plaintiff’s job performance to be insufficient to constitute quid

pro quo harassment).

Alternatively, Webb a rgues that her resignation in June of

1995 amounted to a constructive discharge and that she thereby

suffered a tangible job detriment. Once again, we disagree. In

order to prove constructive discharge, Webb must establish that

working conditions at CSANT were so intolerable that a reasonable

employee in her position would feel compelled to resign. F aruki v.

Parsons S.I.P., Inc.

, 123 F.3d 315, 319 (5th Cir. 1997). As the

district court noted, “[p]art of an employee’s obligation to be

r easonable is an obligation not to assume the worst, and n ot to

jump to conclusions too fast.” D ornhecker v. Malibu Grand Prix

Corp.

, 828 F.2d 307, 310 (5th Cir. 1987) (quoting G arner v. WalMart Stores, Inc. , 807 F.2d 1536, 1539 (11th Cir. 1987)).

The summary judgment evidence reflects that CSANT took prompt

remedial action to prevent any future harassment. This factor

alone is fatal to Webb’s claim of constructive discharge.

Dornhecker

, 828 F.2d at 310 (“Because [the employer’s] prompt

response was the antithesis of ‘inaction,’ [the plaintiff] was not

constructively discharged.”); see also Landgraf v. USI Film Prods.

,

968 F.2d 427, 429-30 (5th Cir. 1992). In addition to requiring

Mack to end his offensive conduct, CSANT offered to transfer Webb

to its Plano office and to take steps to ensure that Webb would

have no contact with Mack. Although Webb subjectively believed

that Mack would not honor such an agreement, she showed no

reasonable basis for this belief. We agree with the district court

that Webb’s exposure to a rude, demanding boss such as Mack did not15

render her employment intolerable so as to support a claim of

constructive discharge. It follows that Webb's quid pro quo claim

must fail because she did not suffer a tangible job detriment.

F.

Finally, Webb challenges the district court’s rejection of her

retaliation claim. To establish a claim for retaliation, Webb must

prove (1) that she engaged in protected activity, (2) an adverse

employment action occurred, and (3) there was a causal connection

between the participation in the protected activity (her complaints

of Mack’s behavior) and the adverse employment action. M esser

, 130

F.3d at 140. In a claim for retaliation under Title VII, we are

concerned only with ultimate employment decisions, including

hiring, discharging, promoting, compensating, or granting leave,

and not “every decision made by employers that arguably might have

some tangential effect upon those ultimate decisions.” M attern v.

Eastman Kodak Co.

, 104 F.3d 702, 707-08 (5th Cir. 1997); accord

Messer , 130 F.3d at 140; Munday v. Waste Management of North Am.,

Inc. , 126 F.3d 239, 243 (4th Cir. 1997).

Webb argues that Mack’s rude treatment of her constitutes an

a dverse employment action that is causally connected to her

resistance to Mack's advances. For the reasons stated above,

Mack’s conduct in treating Webb rudely and uncivi lly does not

amount to an adverse employment action. Moreover, we agree with

the district court that Webb failed to present summary judgment

evidence linking her complaints about Mack’s conduct to any adverse

employment action. Again, Webb stated in her deposition testimony

and conceded in her brief that Ma ck began to treat her as he did16

the rest of the CSANT staff after she ceased being his secretary in

t he fall of 1993. She points to no specific summary judgment

evidence supporting her claim that Mack treated her worse after she

complained to Lori Swalm in January o f 1995. The district court

correctly concluded that no summary judgment evidence linked Mack’s

rude treatment of Webb to her complaint about an u nlawful

employment pr a ctice. Therefore, the district court correctly

granted summary judgment on this issue.

III.

For the reasons stated above, we conclude that the district

court correctly determined that no genuine issues of material fact

existed and that the Defendants were entitled to summary judgment

dismissing Webb’s Title VII and state law claims. We therefore

AFFIRM the district court’s judgment in all respects.

AFFIRMED.