Revised October 29, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-20168

Summary Calendar

LINDA SLOAN,

Plaintiff-Appellant,

VERSUS

JOHN SHARP; ET AL,

Defendants,

JOHN SHARP, Comptroller, in his capacity as head of Comptroller of

Public Accounts for the State of Texas; TEXAS, STATE OF; GRUNDY

WILEY, Individually and in his capacity as an employee with the

State of Texas; COMPTROLLER OF PUBLIC ACCOUNTS

Defendant-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

January 8, 1998

Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

DUHÉ, Circuit Judge:

Appellant Linda Sloan, an employee in the Texas Comptroller’s

office, alleged that her supervisor, Appellee Grundy Wiley, began

sexually harassing her in 1989 and that he continued to do so until2

she was fired in late 1995. Sloan filed a Title VII claim against

the Comptroll er alleging q uid pro quo sexual harassment and a

hostile work environment. Sloan alleged that the Comptroller was

liable for Wiley’s acts. The complaint also included a § 1983

claim against Wiley alleging violation of Sloan’s Fourth, Fifth,

and Fourteenth Amendment rights. The district court dismissed the

§ 1983 claim for failure to state a claim. The Title VII claim was

tried to a jury, which found for the Comptroller. We affirm.

I

In 1980, Sloan began working for the Comptroller in Fort Worth

and Arlington, Texas. In 1988, she transferred to the Southwest

office in H ouston. In 1989, Wiley became the manager at the

Southwest office. Paul Eicke (“Eicke”) and Fern Francis

(“Francis”) worked as supervisors under Wiley and reported directly

to him. Sloan reported either to Fern or Eicke.

Sloan alleges that once Wiley becam e the manager of the

Southwest office, he began a pattern of sexual harassment that

became progressively more intense. She testified to numerous

events in the workplace, on the job away from the workplace and one

occasion at h er home of what she considered to be harassment by

Wiley.

Sloan all eges also that Wiley tolerated her coworkers’

harassment of her. Sloan testified that when she reported the

incident to Wiley he told her that it “was a man’s world and women1 In a ddition to her telephone conversations with Sloan,

Brittain also interviewed Wiley, Eicke, and Francis.

3 have got to get used to this.”

In a nother incident, another coworker touched Sloan in an

inappropriate way. Sloan again alleges that she told Wiley about

the touching and that he took no action.

Last, Sloan states that a third coworker made an inappropriate

remark to her. Sloan reported the remark to Wiley, and Wiley told

the coworker to apologize to Sloan. Sloan alleges that shortly

after the apology, Wiley and the coworker went into Wiley’s office

and began laughing.

In a final incident with Wiley, Sloan alleges that she was

waiting in line to get cake at another office birthday party when

someone pinched her buttocks. When she turned around she saw Wiley

taking his hand down an d she threatened to slap him. Sloan

testified that Wiley left the room, and she went across the hall to

visit with a co worker. A few minutes later, Wiley bumped into

Sloan while she was talking to the coworker in the hall. The

parties dispute whether Sloan was knocked to the floor.

After this incident, Sloan contacted Judy Brittain

(“Brittain”), the employee assistance liaison for the Comptroller’s

office. Brittain talked with Sloan at length over the phone.

Brittain investigated Sloan’s sexual harassment claim and found no

sexual harassment. 1

As a result of her complaint, Sloan was transferred to the4

Northwest office in Houston in 1993. There, she worked for only

five days and never returned to work. Because all employees must

be removed from the payroll after twelve months without leave,

Sloan was fired in late 1995.

Sloan sued the Comptroller under Title VII claiming that the

Comptroller was liable to her for quid pro quo sexual harassment

and hostile wor k environment under the doctrine of vicarious

liability and/or respondeat superior

. She sued Wiley under 42

U.S.C. § 1983 for violating her Fourth Amendment right against

unlawful search an d seizure, her Fifth and Fourteenth Amendment

right to due process, and her Fourteenth Amendment right to equal

protection. Wiley successfully moved for dismissal under Rule

12(b)(6). Sloan’s remaining claim against the Comptroller was

submitted to the jury, and it found the Comptroller was not liable.

Sloan appeals arguing that the Rule 12(b)(6) dismissal was

error and that the trial judge did not properly instruct the jury

on the doctrines of vicarious liability and respondeat superior

.

II

A. STANDARD OF REVIEW

A Rule 12(b)(6) motion is reviewed de novo

. J ohnston v. City

of Houston, Tex.

, 14 F.3d 1056, 1059 (5th Cir. 1994). Ruling on a

Rule 12(b)(6) motion requires the court to accept the allegations

as true and view them in the light most favorable to the non-mover

drawing all reasonable inferences in that party’s favor. B aker v.2 Sloan only briefs the Fourteenth Amendment due process claim;

therefore we address only that claim. All issues not briefed are

waived. V illenueva v. CNA Ins. Co.

, 868 F.2d 684, 687 n.5 (5th

Cir. 1989); Cinel v. Connick , 15 F.3d 1338, 1345 (5th Cir. 1994).

5 Putnal , 75 F.3d 190, 196 (5th Cir. 1996). The motion is denied

unless it appears to a certainty that the plaintiff can prove no

set of facts that would entitle her to relief. M cCartney v. First

City Bank , 970 F.2d 45, 47 (5th Cir. 1992).

B. ANALYSIS

Wiley moved for a Rule 12(b)(6) dismissal on the grounds that

Sloan could not seek relief under both Title VII and § 1983 because

S loan failed to show an independent basis for the § 1983 claim.

Wiley relied primarily upon Jackson v. City of Atlanta, Tex.

, 73

F.3d 60 (5th Cir.), cert. denied , 117 S. Ct. 70 (1996) which held

that the same facts that suppor t a Title VII claim cannot also

support a separate § 1983 claim. The district court found that

despite the fact that Sloan was given another opportunity to

replead, she did not allege any conduct that supported her claim

for a constitutional injury. 2

The district court held that Jackson only reaffirmed the rule

that a plaintiff may pursue claims under both Title VII and § 1983

if the predicate for the § 1983 is a right independent of one that

Title VII creates. Moreover, the district court’s analysis of the

due process claim examines whether Sloan stated her claim with

factual detail and particularity. Whether the claim arose from

identical facts was not controlling.6

The court found that Sloan did not allege any facts that could

countenance a claim for a due process vio lation. When the court

dismissed Sloan’s third amended complaint, it stated that Sloan’s

repleaded complaint should state the specific conduct that resulted

in damage to her bo d ily integrity and how it amounted to a

constitutional deprivation. The court also stated that the amended

pleading must address Wiley’s qualified immunity defense. Sloan’s

fourth amended complaint does n ot address any of these

requirements. Sloan argues that she alleges she suffered a due

process violation when Wiley bumped into her and touched her leg,

but she does not explain how this amounts to a due process

viola tion. Nor does her complaint address Wiley’s qualified

immunity defense. She argues that Wiley does not have a qualified

immunity defense because the cour t denied his motion for summary

judgment based on qualified immunity and he did not cross appeal.

Thus, he waived his defense. The record cites that Sloan refers to

do not show that Wiley’s qualified immunity defense was denied, and

thus he has not waived his defense. Therefore, under S chultea v.

Wood

, 47 F.3d 1427 (5th Cir. 1995), Sloan has not p led her claim

with factual detail and particularity. Id. at 1430.

III

Sloan’s second issue on appeal is that the court did not fully

instruct the jury on r espondeat superior and/or vicarious

liability.7

A. STANDARD OF REVIEW

We review a trial judge’s jury instructions with deference

because “it is the inescapable duty of the trial judge to instruct

the jurors, fully and correctly, on the applicable law of the case,

and to guide, direct, and assist them toward an intelligent

understanding of the legal and factual issues involved.” T readway

v. Societe Anonyme Louis-Dreyfus

, 894 F.2d 161, 167 (5th Cir. 1990)

(internal quotation marks omitted). We apply a two part test to

evaluate objections to the failure to give a requested instruction.

The objecting party must first show that the proposed instruction

correctly states the law. If it does, then we determine if the

given instruction was misleading. We reverse the judgment only if

the charge as a whole leaves substantial and unremovable doubt as

to whether the jury was properly guided in its deliberations. I d.

at 167-68.

B. ANALYSIS

Sloan requested that the trial court’s instruction to the jury

on respondeat superior read:

The Court instructs you that r espondeat superior

in the context of this case means that the State of

Texas is absolutely responsible f or the acts of a

supervisor who has the power to make employment

decisions concerning the employee’s discipline,

promotion, performance evaluations, or termination.

The Court finds that Plaintiff was in a protected

group and that the alleged harassment complained of

was based on sex.

As for her claim of a sexually hostile work environment, Sloan8

asked that the jury instruction read:

Sexually discriminatory verbal intimidation,

ridicule and insult may be s ufficiently severe or

pervasive to alter the condition s of the victim’s

employment so as to create a sexually hostile work

environment.

Under the legal theory that Defendant State of

Texas subjected Plaintiff to a sexually hostile work

env ironment, the State of Texas is liable for the

sexual harassment acts of its super visors if the

supervisor was entrusted with the position of

responsibility of supervising the employee.

The court’s actual instructions explained the elements of quid

pro quo sexual harassment and hostile work environment. Sloan

argues that her proposed instructi ons fall within the two-part

Treadway test. She argues that she meets the first part of the

te st because the requested instruction correctly stated the law.

Sloan contends that because one of the elements of quid pro quo and

hostile work environment harassment is whether a defendant knew or

should have known of the sexual harassment, leaving out her

instruction would misguid e the jury. Sloan argues that Wiley

and/or Eicke and Francis’ alleged commission of sexual harassment

satisfies the prima facie elements of notice. Therefore, without

the requested instruction, the jury would not have known that no

additional reporting to supervisors was necessary for there to be

notice where Wiley, Eicke, or Francis e ither perpetrated or

acquiesced in sexual harassment.

The Comptroller argues that even if Wiley sexually harassed or

a cquiesced in sexual harassment, the Comptroller is not st rictly9

liable. Sloan’s proposed instruction misstates the law. In

Patterson v. PHP Healthcare

, 90 F.3d 927, 943 (5th Cir.), cert.

denied

, 117 S. Ct. 767 (1996), we held that agency principles apply

to Title VII when intentional wrongs are committed in furtherance

of employment; however, the tortfeasing employee must think that he

is doing the employer’s business when committing the wrong. Sloan

fails to explain how Wiley thought that he was doing the

Comptroller’s business when he was allegedly sexually hara ssing

her.

As for Wiley’s failure to report the coworker’s actions and/or

remarks, the jury heard testimony that Sloan reported only one of

the incidents to Eicke, Sloan’s direct supervisor at the time, or

to Wiley. Thus, there was sufficient evidence for the jury to

believe that Wiley did not know of the incidents with the

coworkers. Since Wiley did not fail to take action, then the

Comptroller cannot be found liable.

AFFIRMED.