* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R.

47.5.4.

1 United States Court of Appeals

Fifth Circuit



## FILED

June 25, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-41135

KRISTI MARTORELL,

Plaintiff-Appellant,

versus

GALVESTON COUNTY, TEXAS,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

G-02-CV-515

Before BARKSDALE, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM: *

Kristi Martorell brought this Title VII suit against her former employer, Galveston County,

cl aiming t hat she had been constructively discharged from her employment with the County in

retaliation for sexual harassment complaints she made against her supervisor, Sergeant P.J. Alvarado.

Th e district court granted Galveston County’s motion for summary judgment and dismissed2

Martorell’s claims with prejudice. For the following reasons, we AFFIRM

FACTUAL AND PROCEDURAL HISTORY

From May, 1997, until she resigned in December, 2000, Martorell was emplo yed as a

Co rrect ional Officer at the Galveston County Jail. In May of 1999, Alvarado began verbally

harassing Martorell

-- for example, he made inappropriate comments about her anatomy and asked

her when he could come to her house for breakfast. Martorell did not report Alvarado’s conduct until

December, 1999, when his advances became physical. At that time, she filed an Internal Affairs

complaint alleging that Alvarado subjected her to verbal and physical sexual harassment , and

unannounced and unwelcome visits to her home.

On December 27, 1999, Martorell met with Major Freddi Poor and Sergeant Mike Barry to

discuss Alvarado’s behavior t o wards her. Immediately following this meeting, Martorell was

transferred at her request from the afternoon shift (2pm to 10 pm) to the morning shift (6am to 2pm)

to avoid contact with Alvarado. The County investigated the allegations, sustained Martorell's

complaint after Alvarado admitted wrongdoing, and reprimanded Alvarado by demoting him from

Sergeant to Deputy and cutting his pay accordingly.

Although Alvarado never sexually harassed Martorell again, Martorell claimed that other

colleagues retaliated against her for having brought a complaint abo ut Alvarado. Specifically,

Martorell alleged tha t cert ain co-workers ceased being friends with her and that deputies made

statements to her that she would have them “in administration” (i.e., she would get them in trouble),

that everyone was glad she left the afternoon shift, that everybody hated he r, and that she was a

troublemaker.

In early 2000, Martorell became pregnant and developed gest at io nal diabetes mid-way3

through her pregnancy. She was assigned to work solo in direct contact with inmates in a women’s

dorm. In that capacity, she was punched in the stomach while seven months pregnant by an inmate.

Fearing that the dorm assignment posed a threat to her safety and that of her unborn child, Martorell

twice formally asked to be reassigned to a position that was less stressful and physically demanding.

She first went to Lieutenant Gregory to request reassignment, but Gregory refused, informing her that

she “should have thought about that before [she] got pregnant.” Major Poor, too, refused to reassign

her, claiming that he had no other positions available for her.

On September 22, 2000, six weeks prior to the birth of her child, Martorell stopped working

because her doctor placed her on bed rest to alleviate pregnancy complications. Martorell did not

return to work at the correctional facility, but instead tendered her resignation on December 4, 2000,

when her family medical leave ended.

After she resigned, Martorell secured a part-time position at a local police department. She

was told that she would get a full-time post if she obtained a state law enforcement license. Before

Mart o rell submitted her application for the position, however, the police chief conducted a

background check and informed her that her Galveston County personnel file described her as “slow

and stupid,” a “slut,” and a “troublemaker.”

Based on these events, Martorell argued to the district court that she was sexually harassed

and retaliated against in violation of Title VII. The district court disagreed and grant ed summary

judgment in favor of the County, ruling that Martorell's sexual harassment and retaliation claims failed

as a matter of law. Martorell now appeals the district court’s ruling on her retaliation claim.4 DISCUSSION

I. Standard of Review

This Court reviews the grant of summary judgment de novo, applying the same legal standards

as the district court applied to determine whether summary judgment was appropriate. F lock v.

Scri pto-Tokai Corp

., 319 F.3d 231, 236 (5th Cir. 2003) (citing Ramirez v. City of San Antonio

, 312

F.3d 178, 181 (5th Cir. 2002)). A summary judgment motion is properly granted only when, viewing

the evidence in the light most favorable to the nonmoving party, the record indicates that there is “no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c); C elotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). To determine

“whether there is a dispute as to any material fact, we consider all of the evidence in the record, but

we do no t make credibility determinations or weigh evidence.” F lock

, 319 F.3d at 236 (citation

omitted). Rather, “we draw all reasonable inferences in favor of the nonmoving party.” Id.

II. Analysis

In order to establish

a prima facie case for retaliation under Title VII, a plaintiff must

demo nstrate “(1) that she engaged in an activity protected by Title VII; (2) that an adverse

employment action occurred; and (3) that a causal link existed between the protected activity and the

adverse employment action.” Gee v. Prin cipi , 289 F.3d 342, 345 (5th Cir.2002). A resignation is

actionable as an adverse employment action only if the resignation qualifies as a constructive

discharge. Faruki v. Parsons , 123 F.3d 315, 319 (5th Cir. 1997).

The district court concluded that Mar t o rell failed to raise an issue of material fact on two

essential elements of her Title VII claim: that her resignation qualified as a constructive discharge and

was thereby actionable as an adverse employment action and that a causal link existed between the5

protected activity-- her sexual harassment complaint

-- and the alleged adverse employment action.

Because we conclude that Martorell failed to meet her summary judgment burden as to causation,

we need not address whether t he Co unt y’s failure to reassign her to a “less stressful position”

constituted an adverse employment action (i.e., that she was constructively discharged).

We have reviewed the briefs and the entirety of the record wi th great care. Taki ng the

summary judgment evidence in the light most favorable to Martorell, as we must, we nonetheless find

that her own deposition testimony reveals that there is no causal link between he r alleged adverse

e mployment action and her complaint against Alvarado. Martorell separately asked Lieutenant

Gregory and Major Poor if she could be reassigned. Although she testified that Gregory refused her

request, informing her that she should have t ho ught about the stressfulness of her job “before she

became pregnant,” she denied that his refusal to transfer her was related to any retaliation for having

complained about Alvarado. Rather, Martorell testified that he was just being himself, “a jerk,” and

insensitive to her pregnancy. As for Major Poor, he told Martorell that the posts she requested, for

example, as a recep t io nist, were already occupied by other people. Martorell identified these

individuals by name in her deposition and never denied that they did indeed already occupy t hese

posts. Furthermore, Martorell held the same position, involving the same duties and risks, prior to

and following her complaint. The only difference in her assignment after she became pregnant was

that she apparently spent less time in the cockpit area of the prison, which would have required her

to regularly navigate mult iple flights of stairs while heavily pregnant, and more time in direct contact

with inmates inside the women’s dorm, which allowed her to remain seated at her desk for most of

her shift. Most significantly, Martorell’s own deposition testimony shows that the working conditions

she complained of wer e not the actual reasons for her resignation. Martorell testified that she6

resigned because the prison “wanted her [to return to work] too soon” after she had her baby. U nder

the particular summary judgment evidence presented in this case, we hold that no reasonable juror

could find a causal link betwe en t he Co unty’s alleged adverse employment action and Martorell’s

complaint against Alvarado.

CONCLUSION

For the foregoing reasons, we AFFIR M t he district court’s grant of summary judgment in

favor of Galveston County and its dismissal of Martorell’s Title VII claims with prejudice.

AFFIRMED.