IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30388

TYANNE DAVENPORT, 

 Plaintiff – Appellant

v.

EDWARD D. JONES & COMPANY, L.P., 

 Defendant – Appellee.

Appeal from the United States District Court 

for the Eastern District of Louisiana

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 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 

United States Court of Appeals

Fifth Circuit

FILED

May 16, 2018

Lyle W. Cayce

Clerk
No. 17-30388

2

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 bonusbased 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 

 

1 The district court having granted summary judgment for Edward Jones, we “must 

assume the facts to be as alleged by [Davenport].” Oncale v. Sundowner Offshore Servs., Inc., 

523 U.S. 75, 76 (1998).

2 Among other things, Coyne called Davenport “incompetent” and a “fuckup,” and he 

told her to not make him look like a “dick” in front of clients.
No. 17-30388

3

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”), 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
No. 17-30388

4

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 
No. 17-30388

5

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.

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

 

3 Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013).

4 La Day v. Catalyst Tech., Inc., 302 F.3d 474, 477 (5th Cir. 2002).

5 Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 249 (1986)). 6 Liberty Lobby, 477 U.S. at 255. 7 Id. at 249–50.

8 FED. R. CIV. P. 56(a).
No. 17-30388

6

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 that a reasonable person in her position 

would have felt compelled to resign. The district court agreed with Edward 

Jones that Davenport failed to exhaust her administrative remedies and, 

consequently, pretermitted ruling on the merits. 

To determine whether a Title VII claim has been exhausted, we construe 

the EEOC charge in its broadest reasonable sense and ask whether the claim 

“can reasonably be expected to grow out of the charge of discrimination.”9

Although “[v]erbal precision and finesse [in the charge] are not required,” a 

Title VII lawsuit can include only those allegations that are “like or related to 

[those] allegation[s] contained in the [EEOC] charge and growing out of such 

allegations during the pendency of the case before the Commission.”10

Davenport’s EEOC charge stated as follows:

I began my employment with Edward Jones Financial on October 

13, 2014. On October 28, 2015, my supervisor, Brenden Coyne, 

made an inappropriate comment about me to a client. When the 

client came into the office, I asked the client to consider joining our 

organization and in response, Mr. Coyne stated to the potential 

client, “if you join, I will show the nudies, of Tyanne.” On October 

29, 2015, I contacted Human resources, Susan Miller, who 

instructed me to return to work while [an] investigation is 

conducted. On November 1, 2015, I faxed a leave request for days 

 

9 Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970).

10 Id.
No. 17-30388

7

off, after consulting with my counselor/doctor. The company 

employs over 500 persons. I believe I have been retaliated against 

in violation of Title VII of the Civil Right Act of 1964, as amended, 

because of being sexually harassed.

Although Davenport did not have to use the magic words “constructive 

discharge,” she had to include allegations “like or related to” her constructive 

discharge claim.11 Davenport did not do so. She did not allege facts suggesting 

that she endured severe or pervasive harassment that would have compelled a 

reasonable employee to resign. In fact, she did not allege that she left her 

employment or her reasons for leaving. Rather, Davenport merely alleged that 

Coyne inappropriately discussed a nude picture of her in front of a customer, 

and that, as a result, she took a leave of absence. Her description of the nude 

picture incident and resulting leave of absence was brief and she suggested no 

link between that incident and her departure from Edward Jones. Therefore, 

the district court properly dismissed this claim for lack of exhaustion.

B. Davenport’s bonus quid pro quo claim

Before we address the merits of Davenport’s bonus-based quid pro quo 

claim, we briefly examine our jurisdiction.12 Though neither party raised the 

issue below nor on appeal, at oral argument, the Panel questioned counsel

whether Davenport adequately exhausted her administrative remedies 

regarding her bonus-based claim, and, if Davenport had not done so, whether 

this Panel had jurisdiction to consider that claim. Assuming without deciding 

that Davenport did not adequately exhaust her administrative remedies,13 we 

are satisfied that such a deficiency does not divest us of jurisdiction. 

 

11 Id.

12 E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 467 (5th Cir. 2009) (citing Howery v. 

Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001)) (noting that, when necessary, this Court 

“must consider jurisdiction sua sponte”).

13 Though Davenport briefly described the nude picture incident in her EEOC charge, 

she did not, even in general terms, refer to the bonus comments or any other incident that 
No. 17-30388

8

In Womble v. Bhangu, this Court held that the failure to exhaust 

administrative remedies under Title VII does not deprive a federal court of 

jurisdiction.14 A year later, we reaffirmed that holding in Young v. City of 

Houston, specifically noting that “a failure of the EEOC [exhaustion] 

prerequisite does not rob a court of jurisdiction.”15 But, in a number of other 

cases decided after Womble and Young, we have stated that the Title VII 

exhaustion requirement is jurisdictional.16 It is well-settled that “one panel of 

our court may not overturn another panel’s decision, absent an intervening 

change in the law.”17 Thus, when there is a conflict between decisions within 

this Circuit, the earlier panel decision controls.18 We therefore adhere to 

Womble and Young and find that the exhaustion requirement under Title VII 

is not jurisdictional.19

 

could reasonably be regarded as quid pro quo harassment. Therefore, she may have failed to 

exhaust her administrative remedies regarding this claim. See Fine v. GAF Chem. Corp., 995 

F.2d 576, 577–78 (5th Cir. 1993) (finding that a plaintiff’s administrative remedies were not 

exhausted with respect to an incident of sexual discrimination because the incident sued 

upon was separate from the one raised in her administrative charge); see also Minix v. JeldWen, Inc., 237 F. App’x 578, 588 (11th Cir. 2007) (explaining that “[a]n allegation of 

harassment premised on a supervisor’s tangible employment action is not ‘like or related to’ 

and does not ‘gr[o]w out of’ an allegation of harassment premised solely on the existence of a 

hostile working environment”).

14 864 F.2d 1212, 1213 (5th Cir. 1989).

15 906 F.2d 177, 180 (5th Cir. 1990).

16 See, e.g., Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990); Randel v. Dep't. 

of U.S. Navy, 157 F.3d 392, 395 (5th Cir. 1998). 17 Jacobs v. Nat’l Drug Intelligence Cntr., 548 F.3d 375, 378 (5th Cir. 2008).

18 Camacho v. Tex. Workforce Comm'n, 445 F.3d 407, 410 (5th Cir. 2006).

19 Womble and Young are in line with the majority view. See, e.g., Adamov, 726 F.3d 

851; Tyler v. Univ. of Ark. Bd. of Tr., 628 F.3d 980, 989 (8th Cir. 2011); Vera v. McHugh, 622 

F.3d 17, 29–30 (1st Cir. 2010); Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. 

Branch, 572 F.3d 1039, 1043 (9th Cir. 2009); Douglas v. Donovan, 559 F.3d 549, 556 n.4 (D.C. 

Cir. 2009); Wilson v. MVM, Inc., 475 F.3d 166, 175 (3d Cir. 2007); Francis v. City of New York, 

235 F.3d 763 (2d Cir. 2000); Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000); Jackson 

Seaboard Coast Line R. Co., 678 F.2d 992, 1002 (11th Cir. 1982).

Moreover, even if we were not bound by Womble and Young, the Supreme Court’s 

decision in Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) strongly suggests that those 

decisions reached the correct result. In Arbaugh, the Supreme Court unanimously held that 

Title VII’s employee-numerosity requirement is an element of a plaintiff’s claim, not a 

jurisdictional requirement. In doing so, the Court announced a “readily administrable bright 
No. 17-30388

9

Rather, as determined by Womble and Young, the exhaustion 

requirement under Title VII is merely a precondition to filing suit.20 As such, 

it is subject to waiver and estoppel.21 Here, although Davenport may have 

failed to exhaust her administrative remedies, Edward Jones waived any 

exhaustion argument by declining to raise that argument below or on appeal.

We now turn to the merits of Davenport’s bonus-based quid pro quo 

claim. Davenport asserts that the district court improperly dismissed this 

claim because it failed to credit her uncontroverted deposition testimony that 

Coyne promised her “big bonuses” if she dated Fisher. Edward Jones counters 

on three grounds. First, Edward Jones argues that, as a matter of law, this 

Court does not consider the denial of a bonus to be a tangible employment 

action. Second, Edward Jones argues that, even if the denial of bonus could be 

a tangible employment action, it must be causally related to a supervisor’s 

request that a subordinate engage in sexual acts with the supervisor—not a 

supervisor’s request that a subordinate “date” a third party. Third, Edward 

Jones contends that, in any event, Davenport failed to come forward with 

sufficient evidence to create a genuine issue as to whether she was denied a 

bonus. We address these arguments in turn.

At the summary judgment stage, Davenport was obliged to set forth

evidence from which a reasonable jury could find (1) that she suffered a 

“tangible employment action” and (2) that the action was causally related to

 

line” rule: “when Congress does not rank a statutory limitation on coverage as jurisdictional, 

courts should treat the restriction as nonjurisdictional in character.” Id. at 515–16. In 

Adamov v. U.S. Bank Nat. Ass’n, the Sixth Circuit held that Arbaugh implicitly overturned 

its old rule that Title VII exhaustion requirements are jurisdictional. 726 F.3d 851, 856 (6th 

Cir. 2013). The Sixth Circuit noted that 42 U.S.C. § 2000e–5 describes the EEOC process but 

that, beyond general administrative instructions, the “statute says no more about the 

exhaustion requirement or any connection between the EEOC process and a limit on courts’ 

jurisdiction to hear Title VII cases.” Id.

20 See 4–70 LARSON ON EMPLOYMENT DISCRIMINATION § 70.03 (2017).

21 Id.
No. 17-30388

10

the acceptance or rejection of Coyne’s sexual harassment.22 If a plaintiff can 

prove these elements, her employer “is vicariously liable per se.”23

In Burlington Industries, Inc., v. Ellerth, the Supreme Court defined a

tangible employment action as “a significant change in employment status, 

such as hiring, firing, failing to promote, reassignment with significantly 

different responsibilities, or a decision causing a significant change in 

benefits.”24 The Court explained that, in “most cases,” a tangible employment 

action “inflicts direct economic harm.”25 With that principle as its foundation, 

the Court found that the “denial of a raise” was a tangible employment action.26

In Russell v. Principi, the D.C. Circuit found that the denial of an $800 

bonus constituted a tangible employment action.27 In so finding, the D.C. 

Circuit noted that “a bonus is a tangible, quantifiable award . . . . [i]t has 

a . . . direct, measurable, and immediate effect.”28 Although this Circuit has 

not yet addressed whether the denial of a monetary bonus may qualify as a 

tangible employment action, we agree with the D.C. Circuit that, so long as the 

bonus is “significant,” it can.29 A monetary bonus is a tangible award.30 It, like 

a raise, directly results in greater remuneration for the employee. Certainly, it 

is more analogous to a raise than to something less quantifiable, such as 

undesirable working conditions. Under the proper circumstances, the denial of 

 

22 Casiano, 213 F.3d at 283–84. 

23 Id. (citing Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 761–62 (1998)).

24 524 U.S. at 761.

25 Id. at 762.

26 Id. at 761. 

27 257 F.3d 815, 819 (D.C. Cir. 2001) (rejecting “the notion that a denial of a monetary 

bonus is not a cognizable employment action under Title VII”).

28 Id.

29 See Ellerth, 524 U.S. at 761. Edward Jones does not dispute the significance of the 

alleged bonuses.

30 Cf. id.
No. 17-30388

11

a monetary bonus, which “inflicts direct economic harm,” can constitute a 

tangible employment action.31

Even if we consider the denial of a bonus to be a tangible employment 

action, Edward Jones contends, Davenport’s claim must fail because she did 

not allege that the bonuses were conditioned upon her acquiescence to 

advances from Coyne. They argue that because Davenport merely alleged that 

the bonuses were conditioned upon dating a third party, she may not proceed 

on a quid pro quo claim.

In support of this argument, Edward Jones relies on Alaniz v. Zamora–

Quezada.32 That case involved a direct supervisor who made persistent sexual 

overtures toward four of his former employees.33 It did not involve a 

supervisor’s request that a subordinate perform sexual favors for a third party. 

Alaniz does not limit the scope of quid pro quo harassment to advances 

designed to benefit only the supervisor. Moreover, Alaniz itself notes that, in 

order to establish quid pro quo liability, a plaintiff simply must show that the 

tangible employment action she suffered resulted from her “acceptance or 

rejection of h[er] supervisor’s alleged sexual harassment.”34

Here, Coyne allegedly conditioned the receipt of “big bonuses” upon 

Davenport’s submission to his requests that she date Fisher. Because Coyne 

made the requests, he engaged in the sexual harassment, not Fisher.35 It is of 

no consequence that a third-party was to be the beneficiary—Coyne was the 

harasser. 

Edward Jones nevertheless argues that Davenport’s claim fails because 

she cannot point to any explicit sexual advance: she can only point to requests 

 

31 Id. at 762.

32 See 591 F.3d 761 (5th Cir. 2009).

33 See id. at 768–70.

34 Id. at 772 (emphasis added); see also Casiano, 213 F.3d at 283.

35 See Alaniz, 591 F.3d at 772.
No. 17-30388

12

that she “date” Fisher. Our case law only requires that the tangible 

employment benefit be contingent on the acceptance or rejection of the 

“supervisor’s sexual harassment,”36 which we have defined as “[u]nwelcome[] 

sexual advances, requests for sexual favors, and other verbal or physical 

conduct of a sexual nature.”37 To this point, Davenport testified that Coyne 

repeatedly asked her to engage in a romantic relationship with Fisher so that 

Coyne could obtain Fisher’s business. This testimony, especially when 

considered in combination with Davenport’s testimony about the nude picture 

incident, evidences that Coyne’s conduct was sexual in nature38 and thus could 

give rise to a quid pro quo sexual harassment claim.39

Edward Jones’s final argument warrants more detailed consideration. 

Edward Jones contends that even if Coyne had promised Davenport that she 

would receive bonuses if she dated Fisher (or conversely that she would be 

denied a bonus if she refused to date Fisher), Davenport’s claim cannot survive 

summary judgment because she failed to come forward with sufficient evidence 

that she was denied a bonus for refusing to date Fisher. 

All Davenport knew was that she received a $400 bonus in March of 2015 

after she completed her training and that Coyne had given her an “exceeds 

expectations” rating on her initial review. Based on this knowledge, she 

reasonably believed Coyne could influence subsequent bonus decisions through 

the review process. But Davenport produced no evidence of Edward Jones’s 

 

36 Id.

37 Simmons v. Lyons, 746 F.2d 265, 270 (5th Cir. 1984) (emphasis added); see also 29 

C.F.R. § 1604.11. 

38 Because “requests for sexual activity are not always made explicitly,” a reasonable 

juror could find that Coyne’s behavior constituted a request for a sexual favor. Gallagher v. 

Delaney, 139 F.3d 338, 346 (2d Cir. 1998), abrogated in part on other grounds by Ellerth, 524 

U.S. 742. 

39 This conclusion accords with Vance v. Ball State Univ., 133 S. Ct. 2434 (2013). In 

that case, the Supreme Court found that an employee whose supervisor told her to “[d]ate 

[him] or clean the toilets for a year” could state an actionable quid pro quo claim so long as

the “reassignment” to toilet duty “had economic consequences.” 133 S. Ct. at 2447 n.9.
No. 17-30388

13

bonus structure; more particularly, she produced no evidence that she was 

eligible for or scheduled to receive a bonus in October 2015 simply because she 

received another “exceeds expectations” rating from Coyne. Additionally, she 

produced no evidence that Coyne either recommended for or against her 

receiving a bonus at that time. The evidence only shows that, in October 2015, 

Coyne rated Davenport as “exceeds expectations” and recommended that she 

receive a 4% raise.40 In sum, Davenport produced no summary-judgment 

evidence that, under Edward Jones’s bonus policy, she was eligible for a bonus 

in October 2015 that Coyne could either approve or disapprove. Consequently, 

Davenport produced no summary judgment evidence that Coyne and Edward 

Jones denied her a bonus because she refused to date Fisher.

On summary judgment, although we must view the record evidence in 

the light most favorable to the plaintiff and “assume the facts to be as [she] 

allege[s],”41 the facts and evidence still must be sufficient to allow a reasonable 

jury to find in her favor. Here, they are not. Without “significantly probative” 

evidence indicating that a bonus was available and that Davenport was eligible 

for and denied that bonus, her quid pro quo claim cannot succeed.42

C. Davenport’s state law invasion of privacy claim

Davenport also contends that the district court improperly dismissed her 

false light invasion of privacy claim, which she based upon Coyne’s nude 

picture comment. Edward Jones argued in its motion that Davenport’s claim 

could not survive summary judgment because this workplace joke could not 

form the basis of a false light invasion of privacy claim. The district court 

agreed, finding that “there [wa]s no objective possibility that this comment 

would place Davenport in a false light.” 

 

40 The October 2015 review form, however, did not include a bonus recommendation 

provision. 

41 Oncale, 523 U.S. at 76. 42 See Liberty Lobby, 477 U.S. at 249–50.
No. 17-30388

14

Under Louisiana law, to succeed on a false light invasion of privacy 

claim, a plaintiff must show that she was subjected to false “publicity” that was 

“unreasonable” and that “seriously interfere[d]” with the plaintiff’s privacy 

interest.43 The defendant’s conduct “must at least be injurious and highly 

offensive to the reasonable man [and] reckless in its disregard for its 

offensiveness.”44 “[T]he reasonableness of the defendant’s conduct . . . is 

determined by balancing the plaintiff’s interest in protecting h[er] privacy from 

serious invasions with the defendant’s interest in pursuing his course of 

conduct.”45 An act that causes merely “some embarrassment or offense” does 

not necessarily “constitute an unreasonable invasion of [] privacy.”46

Here, although Davenport testified that Coyne’s nude picture comment 

embarrassed her, she also conceded that the comment was merely an 

unsuccessful joke. Although there is a paucity of false light invasion of privacy 

case law in Louisiana, in other jurisdictions, where the offending conduct is 

intended and taken as a joke, the courts have found no actionable invasion of 

privacy.47 For example, in Stien v. Marriot Ownership Resorts, Inc., a manager 

produced a videotape at a company party that jokingly portrayed the sexual 

 

43 Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 1386, 1389 (La. 1979); see also 

Zellinger v. Amalgamated Clothing, 28-127 (La. App. 2d Cir. 4/3/96), 683 So. 2d 726, 734 

(Stewart, J., dissenting) (“[I]nvasion of privacy may be established only by proof that 

defendant’s conduct is so unreasonable that it seriously interferes with plaintiff’s privacy 

interest.”).

44 Roshto v. Hebert, 439 So. 2d 428, 432 (La. 1983) (Calogero, J., concurring).

45 Perere v. La. Television Broad. Corp., 2000-1656 (La. App. 1st Cir. 9/28/01), 812 So. 

2d 673, 676. 

46 Id. at 677; see also Stern v. Doe, 2001-0914 (La. App. 4th Cir. 12/27/01), 806 So. 2d 

98, 102.

47 See Wright v. Micro Electronics, Inc., 752 N.W. 2d 466 (Mich. 2008) (overturning a 

false light invasion of privacy judgment because the plaintiff admitted that the offending 

material “was intended and taken as a ‘joke’ perpetrated by a coworker”); cf.

Walko v. Kean Coll., 561 A.2d 680, 683 (N.J. 1988) (“A parody or spoof that no reasonable 

person would read as a factual statement, or as anything other than a joke—albeit a bad 

joke—cannot be actionable as a defamation.”).
No. 17-30388

15

activity of an employee.48 The court noted that the videotape proceeded “in poor 

taste and its presentation [was] rather ill-advised,” but it found that there was 

no actionable invasion of privacy because the manager clearly intended the 

video as a joke.49 Similarly, we cannot disagree with the district court’s 

conclusion that, under these circumstances, the nude picture joke was not an 

unreasonable invasion of Davenport’s privacy. 

IV.

For these reasons, we AFFIRM the district court’s order.

 

48 944 P.2d 374 (Utah Ct. App. 8/14/97); see also Wright, 752 N.W. 2d 466; Walko, 561 

A.2d at 683.

49 Id. at 379–81.
No. 17-30388

16

STEPHEN A. HIGGINSON, Circuit Judge, concurring in part and dissenting 

in part: 

I agree with the majority’s resolution of Davenport’s constructive 

discharge and invasion of privacy claims. I also agree with the majority’s 

discussion of the law governing Davenport’s bonus-based quid pro quo claim. I 

respectfully dissent, however, from its decision to affirm summary judgment 

on the bonus claim.

As the opinion recognizes, offering an employee a bonus in exchange for 

sexual favors with a potential customer is quid pro quo sexual harassment 

under Title VII. Davenport presents evidence that her boss told her at least 

three times that she would receive “big bonuses” in exchange for dating a 

potential customer. Davenport declined the offer, and received no bonus. I can 

find no authority—and the majority cites none—suggesting that this evidence 

is insufficient to create a triable issue of fact.

Brendan Coyne was Davenport’s only direct supervisor. Coyne hired 

Davenport, formally evaluated her work performance, and approved her salary 

increases and bonuses. In March of 2015, Coyne approved a $400 bonus for 

Davenport. As Edward Jones’ attorney conceded at oral argument, Coyne “was 

responsible for giving [Davenport] a bonus” and could have approved a bonus 

“based on good performance or any other vague thing.” 

Presented with this evidence, a jury might conclude that Coyne was 

joking or lying about a bonus, and therefore decide that no quid pro quo existed. 

Or the jury might take Coyne—the man who hired Davenport, supervised her, 

and granted her last bonus—at his word. For the ultimate finder of fact, the 

evidence permits either inference. But at the summary judgment stage “the 

evidence of the non-movant is to be believed, and all justifiable inferences are 

to be drawn in [her] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 
No. 17-30388

17

(1986). This genuine dispute of fact precludes summary judgment, particularly 

where, as here, “it would be difficult to imagine either documentation or higher 

level review” of the harasser’s conduct. Jin v. Metro. Life Ins. Co., 310 F.3d 84, 

98 (2d Cir. 2002).