* Pursuant to 5th Cir. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5th Cir. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-40993

Summary Calendar

__________________

Priscilla Leal,

Plaintiff-Appellant,

versus

City of Corpus Christi,

Defendant-Appellee.

______________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(C-95-CV-243)

______________________________________________

July 2, 1997

Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

This appeal challenges the district court’s grant of a motion

for summary judgment in favor of the defendant and the subsequent

dismissal of the plaintiff’s employment discrimination claims. For

the reasons that follow, we affirm the judgment of the district
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court.

I. Standard of Review

This court reviews the district court’s grant of summary

judgment de novo. See, e.g., Ray v. Tandem Computers, Inc., 63

F.3d 429, 433 (5th Cir. 1995). “Summary judgment is proper when no

issue of material fact exists and the moving party is entitled to

judgment as a matter of law. In determining whether summary

judgment was proper, all fact questions are viewed in the light

most favorable to the non-movant.” Id. (quoting Moore v. Eli Lilly

Co., 990 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 976, 114

S. Ct. 467, 126 L.Ed.2d 419 (1993) (citation omitted)).

II. Background

The plaintiff, Priscilla Leal, has been employed by the

defendant, the City of Corpus Christi, for over fifteen years as

the Senior Secretary for the city’s Public Utilities Commercial

Office. In March 1993, the defendant advertised that it was

accepting applications for a vacancy in its Customer Relations

Manager position. Leal, who was 46 years old at the time, applied

for the promotion and, although she was interviewed for the

position, was not chosen to fill the vacancy. Instead, Barbara

Sudhoff, a 39-year-old, was selected for the position. 

Shortly thereafter, in May of 1993, the city advertised that
2 It is unclear from the record when Leal’s EEOC charge was filed.

She contends in an affidavit, however, that she had a court

appearance on the matter in October 1995. For purposes of summary

judgment, we will assume that Leal’s charge was filed sometime in

early- to mid-1995 and that none of her claims are time-barred.

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it was accepting applications for the position of Meter Reading

Supervisor. Leal applied for that position as well, but was passed

over in favor of Alejandro Puente, a 36-year old male. Based on

these decisions, Leal filed a charge of age and sex discrimination

with the Equal Employment Opportunity Commission (“EEOC”).2

Meanwhile, in March 1992, Victor Salas was promoted to the

position of Utilities Business Office Manager. Salas was thereby

given direct supervisory authority over Leal. Leal contends that

over the course of the next several years, Salas subjected her to

a hostile working environment. In support of this allegation, Leal

points to a number of incidents in which Salas allegedly treated

her and other employees in an unprofessional, intimidating, or

otherwise threatening manner.

Salas’s alleged treatment of Leal culminated in a letter to

the City Manager in which Leal expressed fear for her safety and

claimed that Salas was “continuously following [her], watching

[her] every step and move[, and] stalking and harassing [her].” In

response to this letter, Leal was placed on paid administrative

leave pending an investigation of her concerns. Although the

results of the city’s investigation are unclear, it is undisputed

that Leal was offered a transfer, which she subsequently declined.
4

On May 31, 1995, Leal filed a complaint in federal district

court alleging age discrimination in violation of the Age

Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C. §

621 et seq. Leal later filed amended complaints in which she

raised claims of sex discrimination, hostile work environment

sexual harassment, and retaliation pursuant to Title VII of the

Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §

2000(e) et seq. 

In August 1996, the district court granted the city’s motion

for summary judgment with respect to all of Leal’s claims.

Accordingly, the district court dismissed the case and entered

final judgment in favor of the city. Leal timely filed her notice

of appeal and this appeal followed.

III. Discussion

This court has recognized that an applicant who is passed over

for a position can prove that the challenged decision was pretext

for discrimination by establishing that she is “clearly better

qualified for the position in question.” Odom v. Frank, 3 F.3d

839, 845 (5th Cir. 1993). We explained, however, that “unless

disparities in curricula vitae are so apparent as virtually to jump

off the page and slap us in the face, we judges should be reluctant

to substitute our views for those of the individuals charged with

the evaluation duty by virtue of their own years of experience and

expertise in the field in question.” Id. at 847. After carefully
3 Although Leal claims that “most” of the employees who were

mistreated by Salas were over the age of forty, she does not assert

a claim of hostile work environment harassment based on age.

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examining the record in this case, we cannot find that Leal’s

credentials were “so obviously and substantially superior” to the

successful applicants that Leal was “clearly better qualified” for

the positions at issue. See id. Accordingly, we conclude that

summary judgment was properly granted with respect to Leal’s claims

of age and sex discrimination.

To maintain a claim of sexual harassment based on a hostile

working environment, a plaintiff must show, among other things,

that she was subject to unwelcome sexual harassment based on sex.

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

cert. denied, 479 U.S. 1065, 107 S. Ct. 952, 93 L.Ed.2d 1001

(1987). Viewing the evidence in the light most favorable to Leal,

the record in this case establishes only that Salas utilized an

unduly intimidating management style and did not treat the

employees under his supervision with sufficient respect. Leal’s

evidence is peppered with references to Salas’s poor treatment of

many of his subordinates -- without reference to their sex.3 This

court has recognized, however, that “Title VII does not exist to

punish poor management skills; rather, it exists to eliminate

certain types of bias in the workplace.” Ray, 63 F.3d at 435 n.19.

Because Leal has presented no evidence that Salas’s alleged

treatment of her was based on sex, summary judgment was properly
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rendered with respect to Leal’s claim of hostile work environment

sexual harassment. See DeAngelis v. El Paso Mun. Police Officers

Ass’n, 51 F.3d 591, 593 (5th Cir.), cert. denied, — U.S. —, 116 S.

Ct. 473, 133 L.Ed.2d 403 (1995) (emphasizing that the purpose of a

claim for hostile work environment sexual harassment is “to level

the playing field for women who work by preventing others from

impairing their ability to compete on an equal basis with men”).

Finally, Leal contends that Salas subjected her to a hostile

work environment in retaliation for filing a charge of

discrimination with the EEOC. Even if such a claim is cognizable

in this circuit after our decision in Mattern v. Eastman Kodak, 104

F.3d 702, 705-10 (5th Cir. 1997), Leal has not alleged that the

city failed to take prompt remedial action upon learning of the

harassment. See Jones, 793 F.2d at 719-20 (“In order to establish

a claim against an employer for a hostile work environment, the

plaintiff must show ... that the employer knew or should have known

of the harassment in question and failed to take prompt remedial

action”); Mattern, 104 F.3d at 712 (Dennis, J., dissenting)

(arguing that a claim of hostile work environment retaliatory

harassment is actionable when a plaintiff proves, among other

things, that “... the employer knew or should have known of the

harassment and failed to take reasonably calculated steps to end

the abuse ...”). In fact, it is undisputed that two days after

receiving a complaint, the city placed Leal on paid administrative
4 As part of her claim of hostile work environment retaliatory

harassment, Leal alleges that Salas placed a letter of reprimand in

her file that contained false information. Upon receiving Leal’s

written response to the letter of reprimand, the city conducted an

investigation and deleted all erroneous information from the

letter. Leal does not contend that the city’s handling of this

incident was in any way deficient. 

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leave pending its investigation. Moreover, the city later offered

to transfer Leal to another department. In the absence of

competent evidence that this response was not adequate, Leal cannot

raise a genuine issue of material fact sufficient to withstand

summary judgment.4 See Hirras v. National Ry. Passenger Corp., 95

F.3d 396, 400 (5th Cir. 1996) (noting that “[o]n several occasions,

we have held that an employer’s response to discriminatory conduct

constituted prompt remedial action as a matter of law” (citations

omitted)).

IV. Conclusion

Leal failed to establish a genuine issue of material fact with

respect to any of her claims of discrimination. Therefore, the

district court properly granted summary judgment in favor of the

city with respect to each of Leal’s claims. Accordingly, the

judgment of the district court is AFFIRMED.

 

 
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