* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published except under the limited circumstances set forth

in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-50009

Summary Calendar

_______________

DEBRA LANCASTER,

Plaintiff-Appellant,

VERSUS

H. E. BUTT GROCERY CO., INC.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(M0-95-CV-56)

_________________________

July 31, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Debra Lancaster sued H.E. Butt Grocery Co., Inc. (“HEB”),

alleging sexual harassment and constructive discharge in violation

of title VII. Both parties consented to trial by a magistrate

judge. After extensive discovery, the magistrate judge granted

HEB’s motion for summary judgment, finding that the facts alleged
1 Lancaster quit on December 18, 1992.

2

failed to demonstrate a hostile workplace environment or the

existence of constructive discharge. We affirm summary judgment on

the constructive discharge claim and reverse summary judgment on

the hostile environment claim and remand.

I.

Lancaster was employed by HEB as the manager of the floral

department of HEB’s Big Spring, Texas, store beginning September 15, 1992. During the three months of her employment,1 Tom

Land, the store manager, and other supervisors engaged in the

conduct that gave rise to this suit. 

The alleged hostile behavior falls into two categories:

neutral comments and sex-based comments. The neutral remarks and

incidents were all related to the supervisors’ management of the

floral department. The sex-based remarks took the form of sexually

derogatory comments. Lancaster’s summary judgment evidence relies

on both types of evidence to demonstrate the existence of a

sexually hostile workplace environment, intermingling incidents

concerning the floral department with the alleged sexual remarks.

The summary judgment evidence, when viewed in the light most

favorable to Lancaster, demonstrates that the HEB management

treated its employees, and in particular its floral employees, with

little respect. Lancaster, when asked to describe the hostility
3

she faced at HEB, testified that she considered the ridiculing of

the floral department and its personnel as part of that hostility.

Lancaster’s problems with HEB management are detailed in her

own affidavit and that of Gail McConnell. McConnell’s affidavit

demonstrates that Lancaster took great pride in the floral

department and was upset whenever Land would interfere or make

changes in the department. 

McConnell describes two incidents that demonstrate the

problems Lancaster was having. At the grand opening of the store,

Lancaster had an argument with Joe Villareal and John Contreras

when the two supervisors tore down a floral arrangement to make

room for a greeting card display. Another time, McConnell recalls

that Lancaster was visibly upset when Land removed a ribbon rack

from the floral department because, according to him, it “look

[sic] like a piece of shit!!!!”

Lancaster’s own affidavit prominently lists the state of the

floral department as one of the complained-of conditions. The

department’s problems included a lack of shelving space and

staffing, a cold working environment, a low priority for display

space, and an utter disregard for employees’ marketing ideas.

Lancaster complains that Land did nothing to alleviate these

problems. The summary judgment evidence also demonstrates that

Villareal and Contreras consistently treated employees poorly,

regularly throwing tantrums and purposefully (almost sadistically)

making work conditions stressful. 
2 According to Lancaster, the Ponderosa is a sleazy motel where people meet

for affairs.

3 Dewey Slape is a refrigeration contractor.

4

It is in this context that the sexually derogatory remarks fit

into Lancaster’s hostile environment claim. As Lancaster describes

it, Land once commented that a back belt issued by HEB made her

breasts look larger. Contreras also made comments to other women

about the back-support belts. Sometime later, Lancaster alleges

that Land’s attitude toward her changed because she instructed one

of her assistants not to leave the store for coffee with him.

Throughout this period, Land made between ten and twelve sexually

derogatory comments, ranging from “dumb blond” or “dumb blond

women” to “dumb blond women don’t have what it takes for this

business” and “what can you expect, you are a dumb blond woman.”

Lancaster also alleges that Land invited her, on two

occasions, to the Ponderosa Inn2 for coffee so that the two could

discuss the floral department. Ricky Ornelas also asked Lancaster

to go out for a drink after work. The first time, he said, “Me and

the boys are going down to the Brewery for a beer after work. Do

you want to meet us down there, Debra?” The second time he asked

Lancaster to go, she asked whether his wife was accompanying him.

He angrily replied “no.” Lancaster also alleges that Land once

said “I had been working on Dewey Slape,”3 and she found the remark

to be offensive. 

Lancaster relies on three specific incidents as examples of
5

the type of harassment she faced. The first occurred when she

alerted Land to a refrigerator problem in the floral department.

Land told Lancaster, “I did not think this came from a woman.

Dewey already told me this. This came from a man.” The second

incident occurred at a store manager’s meeting at which Land

commented, “It is hard to believe a blond woman like you would

probably write these things down in your book.” The third incident

occurred when a shipment of flowers was improperly stored,

resulting in $2,000 of damaged flowers. Land laughed and said,

“$2,000 lost on produce. That is what you women deserve.”

II.

This court reviews a grant of summary judgment de novo. Hanks

v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th

Cir. 1992). Summary judgment is appropriate "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

party seeking summary judgment carries the burden of demonstrating

that there is an absence of evidence to support the non-moving

party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

After a proper motion for summary judgment is made, the non-movant

must set forth specific facts showing that there is a genuine issue
6

for trial. Hanks, 953 F.2d at 997.

We begin our determination by consulting the applicable

substantive law to determine what facts and issues are material.

King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992). We then

review the evidence relating to those issues, viewing the facts and

inferences in the light most favorable to the non-movant. Id. If

the non-movant sets forth specific facts in support of allegations

essential to his claim, a genuine issue is presented. Celotex, 477

U.S. at 327.

A.

To maintain a claim of sexual harassment in the workplace, a

plaintiff must demonstrate (1) that she belongs to a protected

class; (2) that she was subject to unwelcome sexual harassment;

(3) that the harassment was based on sex; (4) that the harassment

affected a “term, condition or privilege of employment”; and

(5) that the employer either knew or should have known of the

harassment and failed to take prompt remedial action. Jones v.

Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied,

479 U.S. 1065 (1987). 

Sexually discriminatory verbal intimidation, ridicule, and

insults may be sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment that violates title VII. Harris v. Forklift Sys.,
4 Lancaster’s allegations of non-discriminatory, sex-neutral hostile

conduct cannot be used to support a hostile environment claim. Title VII does

not protect employees from mere hostile conduct, but only from hostile conduct

that is based on their protected status. Mayberry v. Vought Aircraft Co., 55

F.3d 1086, 1091 (5th Cir. 1991).

7

Inc., 510 U.S. 17, __, 114 S. Ct. 367, 370-71 (1993) (citing

Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)). To

make out a claim for hostile environment sexual harassment, the

plaintiff must produce evidence of (1) sexually discriminatory

intimidation, ridicule and insults that are (2) sufficiently severe

or pervasive that they (3) alter the conditions of employment and

(4) create an abusive working environment. Harris, 510 U.S. at __,

114 S. Ct. at 370. 

In determining whether a working environment is objectively

“hostile” or “abusive,” all the surrounding circumstances must be

considered, 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.

510 U.S. at __, 114 S. Ct. at 371.

Lancaster has carried her burden of demonstrating a genuine

issue of material fact as to the existence of a hostile workplace

environment. Although this is a close case for purposes of summary

judgment, the alleged sex-based conduct4 could lead a reasonable

jury to find a pervasive hostile or abusive environment that

impaired Lancaster’s work performance. The existence of unwanted

sexual advances, the number of comments in a relatively short time
8

period, the number of perpetrators, the wide array of victims, and

the fact that the perpetrators were supervisors distinguish this

case from DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d

591, 593 (5th Cir.), cert. denied, 116 S. Ct. 473, and cert.

denied, 116 S. Ct. 473 (1995), where the only conduct at issue took

the form of mere offensive utterances.

B.

The magistrate judge also held that Lancaster failed to show

constructive discharge, as a matter of law, because she did not

take advantage of the HEB grievance procedure. Lancaster’s only

argument is that Land’s comment that he finally got rid of her

proves constructive discharge. We agree that Lancaster cannot

demonstrate constructive discharge and thus cannot recover damages

for backpay. See Landgraf v. USI Film Prods., 968 F.2d 427, 429

(5th Cir. 1992).

Lancaster misunderstands the nature of a constructive

discharge claim. “In order to demonstrate constructive discharge,

[the plaintiff] must prove that ‘working conditions would have been

so difficult or unpleasant that a reasonable person in the

employee’s shoes would have felt compelled to resign.’” Landgraf,

968 F.2d at 429 (citing Bourque v. Powell Elec. Mfg. Co., 617 F.2d

61, 65 (5th Cir. 1990)); Jurgens v. EEOC, 903 F.2d 386, 390-91 (5th

Cir. 1990). Proof of a hostile work environment is insufficient to
9

support constructive discharge, as “the plaintiff must demonstrate

a greater severity or pervasiveness of harassment than the minimum

required to prove a hostile working environment.” Landgraf, 968

F.2d at 430; Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644

F.2d 1071, 1077 (5th Cir. Unit A May 1981) (holding that constructive discharge requires “aggravating factors”).

The summary judgment evidence does not raise a genuine issue

of material fact with regard to constructive discharge. The

evidence shows that Lancaster never raised a complaint with HEB

management regarding the alleged sexual harassment. Moreover,

there is no evidence that a reasonable employee would have

considered the grievance procedure as futile. As the magistrate

judge correctly held, “[a] ‘reasonable employee,’ instead of

resigning would have first pursued a formal grievance with HEB

management.” See Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d

239, 242-43 (5th Cir. 1993) (holding that a reasonable employer

would file a grievance before walking off the job); McKethan v.

Texas Farm Bureau, 996 F.2d 734, 741 (5th Cir. 1993) (same); see

also Bourque, 617 F.2d at 66 (“[W]e believe that society and the

policies underlying Title VII will be best served if, whenever

possible, unlawful discrimination is attacked within the context of

existing employment relationships.”).

For the foregoing reasons, the judgment is AFFIRMED in part,

REVERSED in part, and REMANDED for further proceedings.