UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-1257

Summary Calendar

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FREDDY GARCIA,

Plaintiff-Appellant,

versus

ELF ATOCHEM NORTH AMERICA,

d/b/a Ozark Mahoning & Co.,

ET AL.,

Defendants-Appellees.

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Appeal from the United States District Court for the

Northern District of Texas

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( July 29, 1994 )

Before GARWOOD, SMITH and DEMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Freddy Garcia (Garcia) filed this suit

against defendants-appellees Elf Atochem North America, Inc. (Elf),

Jerry Mowell (Mowell), and Rayford Locke (Locke) (collectively, the

defendants), alleging that he had been sexually harassed during his

employment in violatio n of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et seq . (Title VII). The district court

granted summary judgment in favor of the defendants and dismissed

Garcia's case. Garcia now appeals. We affirm.2 Facts and Proceedings Below

Garcia began working at the Seagraves , Texas, plant of the

Ozark-Mahoning Company (Seagraves Ozark) in December 1984.

Seagraves Ozark is a Delaware corpora tion, and is a wholly-owned

subsidiar y of Delaware Chemicals Corporation, which in turn is a

subsidiary of Elf. Mowell was a plant manager at Seagraves Ozark

during Garcia's employment there. Locke was a plant foreman at

Seagraves Ozark during this same period, but left the plant in

February 1992 and did not return. Although Locke was a supervisor

at Seagraves Ozark, he was not Garcia's supervisor.

Garcia's employment at Seagraves Ozark was governed by a

collective bargaining agreement between Seagraves Ozark and Local

826 of the International Union of Operating Engineers (the Union).

The agreement contains provisions prohibiting sex discrimination

and establishing a grievance and arbitration procedure.

On May 3, 1991, Garcia reported to his Union steward, Vick

Cornett, who then reported to Mowell, that Locke had "sexually

harassed" Garcia. Garcia alleged that on several occasions between

March and May of 1991, Locke had approached Garcia from behind and

"reach[ed] around and grab[bed] [Garcia's] crotch area and ma[de]

sexual motions from behind [Garcia]." In response to Garcia's

complaint, Seagraves Ozark reprimanded Locke and informed him that

any further incidents would result in his termination. After he

was reprimanded, no further incidents occurred betwee n Locke and

Garcia and Garcia continued to work at Seagraves Ozark.

Prior to Garcia's complaint, Seagraves Ozark had received two

other arguably simil ar complaints about Locke's conduct: one in3

1986 and one in 1988. The conduct complained of was viewed as

"horseplay" and was not alleged to be sexually motivated. After

these complaints, Locke was counselled about his behavior and

informed that his conduct was not appropriate for a supervisor.

Following this counselling, no further complaints were reported to

Seagraves Ozark until Garcia's May 3, 1991, complaint.

On June 4, 1991, Garcia filed a charg e of employment

discrimination with the Equal Employment Opportunities Commission

(EEOC). Thereafter, on June 30, 1992, Garcia filed the instant

action. In his complaint, Garcia alleged that he had been sexually

harassed in violation of Title VII, and named as defendants Elf,

Mowell, and Locke. Garcia's complaint also alleged several state

law causes of action. He sought compensatory and punitive damages,

as well as costs, fees, and any "[i]njunctive relief the Court may

deem just."

On February 1, 1993, Mowell and Elf filed a motion for summary

judgment as to all claims. Locke filed a separate motion for

summary judgment on that same date. On March 1, 1993, the district

c ourt granted the defendants' motions for summary judgment as to

the Title VII claim. The court based its decision on its

conclusions that (1) neither Garcia nor Locke were employees of

Elf, but were instead employees of Seagraves Ozark; (2) Mowell took

immediate corrective steps in response to Garcia's May 3, 1991,

complaint; (3) Locke did not bother or attempt to harass Garcia

after the warning and reprimand by Mowell in May of 1991; (4)

Seagraves Ozark had a policy prohibiting sexual harassment posted

on its bulletin board for several years prior to May 1991; and (5)4

bec ause Garcia failed to name Locke as a respondent in his EEOC

complaint, he had not exhausted his administrative remedies against

Locke in the alleged sexual harassment claim. In addition to

granting summary judgment on the Title VII claim, the district

court dismissed the state law claims without prejudice.

The district court subsequently denied Garcia's motion for

reconsideration which was directed to the Title VII claim only. On

appeal, Garcia challenges only the summary judgment o n the Title

VII claim.

Discussion

This case comes to us from a grant of summary judgment against

the party with the burden of proof at trial. In reviewing a

summary judgment, we review the record de novo

, see Topalian v.

Ehrman

, 954 F.2d 1125, 1131 (5th Cir.), cert. denied

, 113 S.Ct. 82

(1992), and we apply the same standard as the district court.

Waltman v. Int'l Paper Co.

, 875 F.2d 468, 474 (5th Cir. 1989). We

must "review the facts drawing all inferences most favorable to the

pa rty opposing the motion." R eid v. State Farm Mut. Auto. Ins.

Co. , 784 F.2d 577, 578 (5th Cir. 1986). If the record taken as a

whole could not lead a rational jury to find for the nonmoving

party, there is no genuine issue for trial. B oeing Co. v. Shipman

,

411 F.2d 365, 374-75 (5th Cir. 1969) ( en banc ). "Such a finding

may be supported by the absence of evidence to establish an

essential element of the nonmoving party's case." Hibernia Nat'l

Bank v. Carner

, 997 F.2d 94, 98 (5th Cir. 1993) (citations

omitted). Additionally, "[w]e may affirm a summary judgment on

grounds other than those relied upon by the district court when we5

find in the record an adequate and independent basis for that

result." B rown v. Southwestern Bell Tel. Co.

, 901 F.2d 1250, 1255

( 5th Cir. 1990) (citations omitted). Once a movant who does not

have the burden of proof at trial makes a properly supported

motion, the burden shifts to the nonmovant to show that a summary

judgment should not be granted. C elotex Corp oration v. Catrett

,

106 S.Ct. 2548, 2 552-53 (1986). A party opposing such a summary

judgment motion may no t rest upon mere allegations of his

pleadings, but must set forth and support by summary judgment

e vidence specific facts showing the existence of a genuine is sue

for trial. Anderson v. Liberty Lobby, Inc. , 106 S.Ct. 2505, 2514

(1986).

Title VII provides that where a court finds that an employer

has engaged in unlawful employment practices, it may order action

"which may include, but is not limited to, reinstatement or hiring

of employees, with or without back pay,

. . . or any other

equitable relief as the court deems appropriate." 42 U.S.C. §

2000e-5(g). Compensatory and punitive damages are not available

under Title VII for conduct occurring before the effective date of

the Civil Rights Act of 1991. L andgraf v. USI Film Prods.

, 968

F.2d 427, 431 (5th Cir. 1992), aff'd , 114 S.Ct. 1483 (1994).

Since the conduct complained of by Garcia took place in May of

1991, and the dam ages provisions of the Civil Rights Act of 1991

did not become effective until November 21, 1991, Garcia could only

seek equitable relief. Yet, because Garcia continued to work for

Seagraves Ozark in the same position with at least the same

compensation, and because Locke no longer works for Seagraves6

Ozark, neither an award of back pay nor any other form of

injunctive relief would be appropriate. Thus, any harm Garcia may

have suffered as a result of Locke's harassment is not redressible

under Title VII. For this reason, Garcia's claim fails and we will

uphold the summary judgment.

Garcia's Title VII claim was also properly dismissed because

he did not esta b lish a prima facie case against any of the

defendants.

I. Defendants

A. Elf Atochem

Title VII prohibits an "Employer" from discriminating "against

any individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's

. . .

sex." 42 U.S.C. § 2000e-2(a)(1). The district court concluded

that summary judgment was appropriate as to Elf in part because

Title VII liability attaches only to the plaintiff's employer, and

the court found that Elf was not Garcia's "Employer" for the

purposes of the statute.

In his response to Elf's motion for summary judgment, Garcia

argued that the district court should find that Elf was his

employer based solely on Mowell's deposition testi mony that (1)

Garcia was employed by Seagraves Ozark, and (2) Seagraves Ozark is

a wholly owned subsidiary of Elf. These two facts standing alone,

however, are not enough to establish that Elf is Garcia's employer.

Apparently, Garcia's argument is that Elf and Seagraves Ozark

are a "single, integrated enterprise," making Seagraves Ozark's

status as Garcia's employer attributable to Elf. Although "[t]he1 The term "employer" is defined in the Act as follows:

"(b) The term 'employer' means a person engaged in an

industry affecting commerce who has fifteen or more

employees for each working day in each of twenty or

more calendar weeks in the current or preceding

calendar year, and any agent of such a person, but such

term does not include (1) the United States, a

corporation wholly owned by the Government of the

United States, an Indian tribe, or any department or

agency of the District of Columbia subject by statute

to procedures of the competitive service (as defined in

section 2102 of Title 5), or (2) a bona fide private

membership club (other than a labor organization) which

is exempt from taxation under section 501(c) of Title

26, except that during the first year after March 24,

1972, persons having fewer than twenty-five employees

(and their agents) shall not be considered employers."

42 U.S.C.A. § 2000e(b) (1981).

7 term 'employer' as used in Title VII of the Civil Rights Act was

meant to be libera lly construed," 1 a parent and subsidiary cannot

be found to "represent a single, integrated enterprise" in the

absence of evidence of "(1) inter relation of operations, (2)

centralized control of labor relations, (3) common management, and

(4) common ownership or financial control." Trevino v. Celanese

Corp.

, 701 F.2d 397, 403-04 (5th Cir. 1983); see also Armbruster v.

Quinn , 711 F.2d 1332 (6th Cir. 1983) (parent and subsidiary which

were highly integrated with respect to ownershi p and operations

constituted single "employer"). But cf. Nationwide Mut. Ins. Co.

v. Darden

, 112 S.Ct. 1344, 1348-49 (1992) (noting that when a

statute does not helpfully define a term, courts should not apply

a meaning that is broader than it s common-law definition, in

adopting common-law test for deciding who qualifies as an

"employee" under ERISA). In the case s ub judice

, Garcia failed to

identify any such evidence in his opposition to Elf's motion for8

summary judgment. Hence, the district court was correct in finding

that Elf was not Garcia's employer for the purposes of Title VII,

and was thus correct in granting summary judgment in favor of Elf

on that basis.

B. Locke

As noted above, Title VII liability attaches only to a

plaintiff's "employer." Section 2000e(b) defines an employer as "a

person engaged in an industry a ffecting commerce . . . a nd any

agent of such a person ." 42 U.S.C. § 2000e(b) (emphasis added).

In this Circuit, we have accorded the phrase "any agent" a liberal

construction. Harvey v. Blake , 913 F.2d 226, 227 (5th Cir. 1990)

(citi ng Rogers v. EEOC , 454 F.2d 234, 238 (5th Cir. 1971), c ert.

denied , 92 S.Ct. 2058 (1972), and Q uijano v. University Federal

Credit Unio n , 617 F.2d 129, 131 (5th Cir. 1980)). "Under this

liberal construction, immediate supervisors are Employers when

delegated the employer's traditional rights, such as h iring and

firing." I d

. (emphasis added) (citation omitted); see also

Hamilton v. Rodgers , 791 F.2d 439, 442-43 (5th Cir. 1986)

(construing the term employer to include immediate supervisors only

when they "participated in the decision-making process that forms

the basis of the discrimination"). There can be no liability under

Title VII, however, "for the actions of mere co-workers." H arvey

,

913 F.2d at 228.

In the case sub judice , Garcia attempts to hold Locke liable

under Title VII, even tho ugh it is undisputed that Locke was not2 Although Garcia's complaint does not make clear whether he

is suing either Locke or Mowell in their individual capacity or

rather in their capacity as agents of Seagraves Ozark, we

construe Garcia's suit to be against Locke and Mowell in their

official capacity since Title VII liability does not attach to

individuals acting in their individual capacity. Grant v. Lone

Star Co. , 21 F.3d 649 (5th Cir. 1994).

9 Garcia's supervisor. 2 To accept this argument would require this

Court to further liberalize our construction of the term employer

to include all supervisory personnel, no t just those with the

abi lity to hire or fire. We decline to do so. The purpose of

extending "employer" stat us to immediate supervisors is to hold

liable those with power over the plaintiff which exceeds that of

mere co-workers. Here, Locke was not responsible for the terms and

conditions of Garcia's employment, for his work assignment within

the company, or for hiring or firing decisions. Because we see no

basis on which to extend Title VII liability to someone in Locke's

position, summary judgment was appropriate.

C. Mowell

The district court granted summary judgment in favor of Mowell

in part because the court found that (1) Mowell took prompt action

against Locke in response to Garcia's May 3, 1991, complaint, and

(2) Mowell's actions were effective in that Locke did not bother or

attempt to harass Garcia after the warning and reprimand in May

1991.

Assuming, arguendo , that Mowell as Garcia's supervisor could

be considered an employer for the purposes of Title VII, and that

Locke's conduct toward Garcia constituted sexual harassment under

Title VII, Mowell nevertheless ca n be held liable for sexual10

harassment only if he knew or should have known of the harassment

and failed to take prompt remedial actio n which was "reasonably

calculated" to end the harassment. S ee Jones v. Flagship Int'l

,

793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied , 107 S.Ct. 952

(1987). "What is appropriate remedial action will necessarily

depend on the particular facts of the case SQ the sever ity and

persistence of the harassment, and the effectiveness of any initial

remedial steps." W altman

, 875 F.2d at 479 (citing DeGrace v.

Rumsfeld , 614 F.2d 796, 805 n.5 (1st Cir. 1980).

Immediately after Garcia reported Locke's behavior to Mowell,

Mowell reprimanded Locke and warned him that any further harassment

of Garcia would result in termination. Garcia contends that this

action was not "reasonably calculated to end the harassment."

Garcia's argu ment is unpersuasive because not only were Mowell's

actions prompt and reasonably calculated to end the harassment, but

the harassment actually ended. Hence, Garcia failed to satisfy

this prong of the F lagship test, and thus the district co urt was

correct in granting summary j udgment on Garcia's Title VII claim

against Mowell.

II. Sexual Harassment

Finally, we held in Giddens v. Shell Oil Co

., No. 92-8533 (5th

Cir. Dec. 6, 1993) (unpublished), that "[h]arassment by a male

supervisor against a male subordinate does not state a claim under

Title VII even though the harassment has sexual overtones. Title

VII addresses gender disc rimination." A ccord Goluszek v. Smith

,

697 F.Supp. 1452, 1456 (N.D. Ill. 1988). Thus, what Locke did to

Garcia could not in any event constitute sexual harassment within11

the purview of Title VII, and hence summary judgment in favor of

all defendants was proper on this basis also.

Conclusion

For the reasons stated above, Garcia's arguments on appeal are

rejected and the district court's judgment is accordingly

AFFIRMED.