1 United States Court of Appeals,

Fifth Circuit.

No. 95-30510.

Joseph ONCALE, Plaintiff-Appellant,

v.

SUNDOWNER OFFSHORE SERVICES, INC., John Lyons, Danny Pippen, and

Brandon Johnson, Defendants-Appellees.

May 20, 1996.

A ppeal from the United States District Court for the E astern

District of Louisiana.

Before SMITH, DUHÉ, and DeMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

Appellant Joseph Oncale filed this sui t against Sundowner

Offshore Services, Inc., ("Sundowner"), John Lyons, Dan ny Pippen

and Brandon Johnson, alleging tha t he had been sexually harassed

during his employment in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, e t seq. ("Title VII"). The

district court granted summary judgment in favor of the defendants

and dismissed Oncale's case. Because our decision in G arcia v. Elf

Atochem No. Am., 28 F.3d 446, 451-52 (5th Cir.1994), holds that

same-sex harassment is not cognizable under Title VII, we affirm.

BACKGROUND

Joseph Oncale was employed by Sundowner on an offshore rig

from August to November 1991. Oncale filed this Title VII action

against Sundowner, John Lyons, his Sundowner supervisor, and Danny1 Sexual harassment in the workplace violates Title VII if it

constitutes quid pro quo harassment, i.e., a supervisor

conditions job benefits either explicitly or implicitly on an

employees participation in sexual activity, see Jones v. Flagship

Int'l, 793 F.2d 714, 721-22 (5th Cir.1986), cert. denied, 479

U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987), or if it alters

an employee's working conditions by creating a hostile work

environment because of the employee's sex. See Harris v.

Forklift Systems, Inc., 510 U.S. 17, ----, 114 S.Ct. 367, 370,

126 L.Ed.2d 295 (1993).

2 Pippen and Brandon Johnson, two Sundowner co-workers, alleging

sexual harassment. Oncale alleges that the harassment included

Pippen and Johnson restraining him while Lyons placed his penis on

Oncale's neck, on one occasion, and on Oncale's arm, on another

occasion; threats of homosexual rape by Lyons and Pippen; and the

use of force by Lyons to push a bar of soap into Oncale's anus

while Pippen re strained Oncale as he was showering on Sundowner

premises. Oncale alleges both q uid pro quo and hostile work

environment sexual harassment. 1 Oncale quit his job at Sundowner

soon after the shower incident.

The district court granted summary judgment on Oncale's Title

VII claim, relying upon our statement in Garcia v. Elf Atochem No.

Am., 28 F.3d 446, 451-52 (5th Cir.1994), that harassment by a male

supervisor against a male subordinate does not state a claim under

Title VII. Thus, the court concluded that it was "compelled to

find th at Mr. Oncale, a male, has no cause of action under Title

VII for harassment by male co-workers." Finally, the court found

th at Oncale's co-workers, Pippen and Johnson, could not be held3

liable as "employers" under Title VII.

DISCUSSION

Precedential Value of Garcia

Title VII makes it "an unlawful emp loyment practice for an

employer

... to discriminate against any individual with respect to

... terms, conditions, or privileges of employment, because of such

i ndividual's ... sex...." 42 U.S.C. § 2000e-2(a)(1). Appellant

and the Equal Employment Opportunity Commission (as Amicus Curiae

) argue that Title VII's prohibition against sex discrimination and

the Supreme Court's sexual harassment decisions are formulated in

gender-neutral terms, and therefore, prohibit all discrimination

because of sex, whether it is discrimination against men or women.

See Harris v. Forklift Systems, Inc., 510 U.S. 17, ----, 114 S.Ct.

367, 370, 126 L.Ed.2d 295 (1993) (referring to "victims" of sexual

harassment, and not just female victims, and adopting "reasonable

person" standard for measuring offensiveness of work environment);

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399,

2405, 91 L.Ed.2d 49 (1986) (" "Surely a requirement that a man or

woman run a gauntlet of sexual abuse in return for the privilege of

being allowed to work and make a living can be as demeaning and

disconcerting as the harshest of racial epithets.' ") (emphasis

add ed) (quoting H enson v. Dundee, 682 F.2d 897, 902 (11th

Cir.1992)). Under this reading of the statute, so long as the

plaintiff proves that the harassment i s because of the victim's2 These cases include Williams v. District of Columbia, 916

F.Supp. 1, 8 (D.D.C.1996); Sardinia v. Dellwood Foods, Inc.,

1995 WL 640502, at *4-5 (S.D.N.Y. Nov. 1, 1995); King v. M.R.

Brown, Inc., 911 F.Supp. 161, 167 (E.D.Pa.1995); Ecklund v.

Fuisz Technology, Ltd., 905 F.Supp. 335, 338 (E.D.Va.1995);

Raney v. District of Columbia, 892 F.Supp. 283, 286 (D.D.C.1995);

Griffith v. Keystone Steel & Wire, 887 F.Supp. 1133, 1136

(C.D.Ill.1995); E.E.O.C. v. Walden Book Co., Inc., 885 F.Supp.

1100, 1101 (M.D.Tenn.1995); Roe v. K-Mart Corp., 1995 WL 316783,

at *1 (D.S.C. March 28, 1995); Prescott v. Independent Life &

Accident Ins. Co., 878 F.Supp. 1545, 1550 (M.D.Ala.1995); McCoy

v. Johnson Controls World Services, Inc., 878 F.Supp. 229, 231

(S.D.Ga.1995).

4 sex, the sex of the harasser and victim is irrelevant.

This panel, however, cannot review the merits of Appellant's

Title VII argument on a clean slate. We are bound by our decision

in Garcia v. Elf Atochem No. Am.

, 28 F.3d 446, 451-52 (5th

Cir.1994), and must therefore affirm the district court. Although

our analysis in Garcia has been reject ed by various district

courts, 2 we cannot overrule a prior panel's dec ision. In this

Circuit, one panel may not overrule the decision, right or wrong,

of a prior panel in the absence of an intervening contrary or

superseding decision by the Court en banc or the Supreme Court.

Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991).

This Circuit's same-sex Title VII jurisprudence began with

Giddens v. Shell Oil Co., 12 F.3d 208 (5th Cir.1993) (per curiam)

(unpublished), cert. denied,

--- U.S. ----, 115 S.Ct. 311, 130

L.Ed.2d 274 (1994). Although the holding in that case is not

entirely clear, it appears that the Court ruled that male-on-male5

harassment with sexual overtones is not sex discrimination without

a showing that an employe r treated the plaintiff differently

because of his sex. Next, in G arcia, we extended Giddens to bar

all same-sex sexual harassment claims:

Finally, we held in Giddens v. Shell Oil Co., No. 92-8533 [12

F.3 d 208] (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

discrimination.' 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 within the purview

of Title VII, and hence summary judgment in favor of all

defendants was proper on this basis also.

This dis cussion seems to indicate clearly that same-sex

harassment claims are not viable under Title VII. When read in its

proper context, however, this final paragraph of the Garcia opinion

poses an interpretive problem. Because the Court had already found

an independent basis to affirm the grant of summary judgment to

each defendant, no part of this analysis is necessary to support

the ultimate decision. Thus, the question arises whether we should

treat Garcia 's pronouncement on same-sex sexual hara ssment as

binding precedent or dictum. When faced with this issue, some

district courts in this Circuit (like the trial court here) have

applied Garcia to dismiss same-sex harassment claims. S ee Sarff v.

Continental Express, 894 F.Supp. 1076, 1082 (S.D.Tex.1995); M yers

v. City of El Paso, 874 F.Supp. 1546, 1548 (W.D.Tex.1995). Others,

b y contrast, have ruled that Garcia 's statements about same- sex

harassment are dicta. See Pritchett v. Sizeler Real Estate Mgmt.3 Although no circuit split yet exists, other circuits have

indicated that same-sex claims should not be excluded from Title

VII's purview. See, e.g., Baskerville v. Culligan Int'l Co., 50

F.3d 428, 430 (7th Cir.1995) (In a heterosexual harassment

6 Co., 1995 WL 241855, at *2 (E.D.La. April 25, 1995); C astellano v.

Whole Foods Market, Inc., No. H-94-2673, slip op. at 7-8 (S.D.Tex.

October 26, 1995).

We read Garcia 's analysis of sexual harassm ent as binding

precedent. After stating that Title VII does not recognize

male-on-male claims, the Cou r t explicitly stated that summary

judgment "was proper on this basis also." This language suggests

that the same-sex rationale for rejecting Garcia's claim is an

alternat ive holding, which we treat as s tare decisis in this

Circuit. "It has long been settled that all alternative rationales

for a given result have precedential value. "It does not make a

reason given for a conclusion obiter dictum, because it is the only

one of two reasons for t he same conclusion.' " M cClellan v.

Mississippi Power & Light Co., 545 F.2d 919, 925 n . 21 (5th

Cir.1977) (quoting Richmond Screw Anchor Co. v. United States, 275

U.S. 331, 340, 48 S.Ct. 194, 196, 72 L.Ed. 303 (1928)). Moreover,

another panel of this Court has recognized Gar cia as binding

precedent on the issue of same-sex harassment, thereby resolving

any uncertainty about Garcia 's precedential force. See Blake v.

City of Laredo, 58 F. 3d 637 (5th Cir.1995) (per curiam)

(unpublished). Therefore, G arcia remains the law of this Circuit. 3action, the court noted parenthetically that "[s]exual harassment

of women by men is the most common kind, but we do not mean to

exclude the possibility that sexual harassment of men by women,

or men by other men, or women by other women would not be

actionable in appropriate cases."). Similarly, in concurring

with the Second Circuit's decision in Saulpaugh v. Monroe

Community Hosp., 4 F.3d 134, 148 (2d Cir.1993), cert. denied,

--- U.S. ----, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994), Judge Van

Graafeiland observed, "harassment is harassment regardless of

whether it is caused by a member of the same or opposite sex."

The District of Columbia Circuit has also acknowledged the

possibility of actionable sexual harassment under Title VII where

"a subordinate of either gender" is harassed "by a homosexual

superior of the same gender." Barnes v. Costle, 561 F.2d 983,

990 n. 55 (D.C.Cir.1977).

The Fourth Circuit, by contrast, recently held that

harassment among heterosexuals of the same sex cannot give

rise to a hostile environment sexual harassment claim under

Title VII. McWilliams v. Fairfax County Board of

Supervisors, 72 F.3d 1191, 1195-96 (4th Cir.1996).

McWilliams, however, explicitly does not "purport to reach

any form of same-sex discrimination claim where either

victim or oppressor, or both, are homosexual or bisexual."

Id. at 1195 n. 4. In a later decision, the Fourth Circuit

in dicta expressed its disagreement with the reasoning of Garcia.

Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 751 (4th

Cir.1996).

7 CONCLUSION

For the foregoing reasons, the decision of the district court

is AFFIRMED.