* Local Rule 47.5 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of well-settled

principles of law imposes needless expense on the public and burdens on the legal

professi on." Pursuant to that Rule, the Court has determined that this opinion

should not be published. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 94-11136

Summary Calendar

_______________________

MIA FITE,

Plaintiff-Appellant,

versus

AER MFG.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:92 CV 2486 P)

_________________________________________________________________ August 17, 1995

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM: *

Mia Fite appeals the grant of summary judgment in favor

of AER Mfg. in this case alleging sexual and racial harassment and

discrimination, and retaliation for filing an EEOC complaint and/or

workers compensation claims. Finding no error in the district

court's judgment, we affirm.2 BACKGROUND

Fite was hired by AER, a Texas corporation engaged in the

remanufacturing of automobile engines and parts, as an hourly

employee on or about April 30, 1990. On September 10, 1991, she

received her first written notice of violation from her supervisor,

Richard Gentry, for failing to apply herself to her work, failing

to arrive at work on time, and failing to begin work immediately

upon arrival. The notice warned that if the lack of effort

continued, Fite's employment would be terminated. On November 18,

1991, Gentry issued a sec ond written notice complaining of

inattentiveness and failure to follow instruction after the leadman in Fite's department reported that she was ineffective and

requested her transfer. On November 23, 1991, Fite was fired when

she arrived more than two hours late for work without having

properly reported in.

Appellant filed a charge of racial discrimination with

the Equal Employment Opportunity Commission ("EEOC") on N ovember

18, 1991, during time off she was granted to see a company doctor.

A fter the EEOC found i nter alia ". . . that White and non-White

employees participated in exchanging racial/ethnic bantering all in

a friendly manner

. . . not tolerated by company management," Fite

filed a pro se lawsuit o n November 30, 1992 setting forth three

d istinct charges of racial discrimination. Appellant first

contended that her September 10 "write-up" was racially motivated,

as a whit e co-worker was not written up for also arriving late.

Next, Fite as serted, that despite having granted her earlier1 Appellant's state law causes of action consisted of claims of

negligent supervision, assault, invasion of privacy, intentional infliction of

emotional distress, wrongful termination under Article 8307c of the Texas Labor

Code, and vicarious liability. Vicarious liability was rejected by the district

court and, since Fite did not raise the issue on appeal, it has been waived.

3 requests for transfer, AER discriminated against her on the basis

of race on or about October 13, 1991 when it failed to consider her

for a part puller position in the Sales Department but instead gave

the job to a white female co-worker. Finally, appellant's original

petition and EEOC charge also alleged that she was subjected to a

racially hostile work environment.

With respect t o Fite's hostile environment claim, she

alleged, and the summary judgment evidence confirms, that her

immediate supervisor, Joh nnie Williams, as well as AER employees

Clarence Geary, Eddie Hardy, and James Foster, two of whom are

black, commonly made use of racial slurs. Fite admits that no one

used such derogatory language with respect to her, but it was used

in her presence, and the EEOC found that appellant herself engaged

in the "ban tering." Fite never reported the use of the racial

language to her manager, Richard Gentry, but she did ask Geary to

stop using such language in her presence. Geary complied, but

appellant now complains that she continued to overhear him through

the bathroom walls.

On October 22, 1993, Fite filed an amended petition with

the assistance of counsel and for the first time raised in court

claims of sexual harassment, Title VII discharge v iolations, as

well as six new state law claims. 1 Specifically, Fite alleged that

co-workers J.T. Neal and Clarence Geary touched her in very4

sexually offensive ways, and Geary and Johnnie Williams t old her

unwelcome stories of their sexual exploits. Fite reported Neal's

conduct to AER, which investigated the allegation and issued him a

notice of violation. Neal did not repeat his behavior after the

warning. Likewise, Geary stopped harassing appellant after she

asked him to stop his lewd behavior. Fite states that she did not

report the Geary or Williams incidents because she considered

Gentry to be hostile toward her and she believed that she could

handle the situation herself.

The district court granted summary judgment on all of

Fite's claims, both state and federal, and appellant has chosen to

appeal only her Title VII racial and sexual harassm ent and

discrimination claims and the Title VII and 8307c retaliation

claims. On appeal, Fite charges that the district court erred in

granting summary judgment in favor of AER and in thus finding

neither procedural errors or no genuine issues of mate rial fact

with respect to these claims.

DISCUSSION

Fite contends that the district court's conclusion that

her sexual harassment claim was untimely filed in federal court and

does not "relate back" to her original employment discrimination

claim was in error. We disagree. Appellant was issued a Notice of

Right to Sue by the EEOC on August 28, 1992, which expressly

informed her that s he had ninety days in which to file suit in2 We note that appellant, even allowing the three-days mailing period

prescribed by Federal Rule of Civil Procedure 6(e), waited to file her complaint on the ninety-first day presumably because the ninetieth day fell on a Sunday. Such

delay is not encouraged.

3 The district court's determination that Fite adequately exhausted her

administrative remedies wit h respect to her sexual harassment and discrimination

claims is also correct.

5 federal court

. 2 On November 30, 1992, Fite filed her original

petition with no references to or allegations of any facts which

could give rise to a sexual harassment claim. It was not until

almost a year later on October 22, 1993, with the filing of the

amended petition, that Fite first made AER aware of her sexual

harassment complaint. 3 She argues, however, that under Federal

Rule of Civil Procedure 15(c), appellee should have adequately been

put on notice of sexual harassment claims as they "arose out of the

conduct, transaction, or occurrence set forth in the original

pleading." In support of this position, Fite cites this court's

decision in FDIC v. Conner

, 20 F.3d 1376, 1385 (5th Cir. 1994). We

note, however, language from the same opinion which states, "an

amended pleading will not relate back if it asserts new or distinct

conduct, transactions, or occurrences as th e basis for relief."

Id

. at 1386. Sexual misconduct is not the same as racial

misconduct. They are two distinct behaviors which cannot be

equated in the manner Fite contends. Nor are Fite's other

citations, which hold that Ti tle VII claims can relate back to §

1981 claims (and vice-versa), persuasive; Title VII and § 1981 are

not distinct occurrences or activities, as is the case here, but

distinct methods of making oftentimes the same claim. S ee Watkins

v. Lujan

, 922 F.2d 261 (5th cir. 1991); Caldwell v. Martin Marietta4 Fite additionally contends that AER should be held liable as a result

of the company's inadequate sexual and racial harassment and discrimination policy.

This court, however, will not hear arguments presented for the firs t time at the

appellate level. S tanley Educ. Methods v. Becker C.P.A. Review

, 539 F.2d 393, 394

(5th Cir. 1976).

6 Corp.

, 632 F.2d 1184 (5th Cir. 1980). Accordingly, the relevant

test for relation-back in thi s situation is whether the original

complaint apprised AER of the sexual harassment and discrimination

claims. McGregor v. Louisiana State Univ. Bd. of Sup'rs. , 3 F.3d

850, 864 (5th Cir. 1993). Here, nothing in Fite's original filing

could conceivably have put AER on notice of such allegations, and,

therefore, dismissal of Fite's untimely sexual harassment claim was

proper.

Fite next contends that the grant of summary judgment on

her claim of racial harassment was improper because AER was either

actually or constructively aware of such conduct, and the

harassment was sufficiently pervasive to be actionable under Title

VII. 4 There are two theories under which a corporate employer can

be held liable for hostile work environment harassment. First,

where the harasser is the plaintiff's employer, or an agent of the

employer who controls the terms and conditions of employment , the

employer is directly liable for the harassment. N ash v.

Electrospace System, Inc.

, 9 F.3d 401, 404 (5th Cir. 1993).

Second, where the hostile work environment is created by a person

such as a co-worker, the employer may be held liable if it can be

established that the employer knew or should have known of the

harassment and failed to take prompt remedial action. I d

. Fite

hints at both theories of liability.7 While Fite readily admits that she never informed

management of her harassment complaints, she argues that AER is

l iable as Johnnie Williams, her immediate supervisor (now dead),

participated in the use of racial and derogatory language. This

attempt at im puting liability upon AER fails, however, as no

evidence is proffered or exists which would show Williams was in a

position to control the terms and condition of Fite's employment.

To the contrary, the record indicates that Williams did not set

company policy, did not hire, fire or promote employees, and did

not have the authority to issue a written notice of violation to

Fite. N ash

, 9 F.3d at 403(first-line supervis[or] did not control

the terms and conditions of employment).

N or does appellant succeed in her attempt to show t hat

the harassment was so pervasive that the employer must have been

aware of it. Dornhecker v. Malibu Grand Prix Corp. , 828 F.2d 307

(5th Cir. 1987). There is no doubt that unfortunate use of racial

slurs occurred in Fite's vicinity at AER, but her claim that the

district court ignored important evidence that created an issue of

material fact is overstated. In fact, the record indicates that

Fite was aware of AER's policy against the use of racially

offensive language, but she never complained of such behavior to

management. Appellant also admits that all of the slurs were

exchanged outside the earshot of any management employees, and some

incidents even occurred away from the workplace. Further, the

record indicates the alle ged offenders cleaned up their language

around Fite at her request. While absolutely none of this alleged5 As AER had no knowledge of Fite's allegations of racial harassment, we

need not discuss the remedi al actions taken "reasonably calculated to end the

harassment." J ones v. Flagship Int'l.

, 793 F.2d 714, 719-20 (5th Cir. 1986), cert.

denied , 479 U.S. 1065, 107 S.Ct. 952 (1987).

8 behavior can be condoned, Fite has made no showing of the

"pervasiveness of the harassment which [would] give[] rise to the

inference of knowledge or constructive knowledge" by the employer.

Waltman v. Int'l. Paper Co. , 875 F.2d 468 (5th Cir. 1989). 5

Fite also cla i ms that racial discrimination was the

motivating factor in AER's issuance of a written reprimand, the

alleged denial of "promotional" opportunities, and Fite's eventual

dismissal. None of these claims is substantiated by the evidence,

however. In fact, with respect to the September 10, 1991 write-up,

appellant readily admits she was late to work and that she did not

begin work upon arrival. Fite's personnel file also indicates that

her superiors had noted that she did not apply herself to her job.

To combat these facts, appellant has not refuted the evidence nor

has she offer ed any evidence or hypotheses of her own to support

her theory of discrimination. Fite's suspicion that Gentry fired

her for race-related reasons simply does not warrant reversal of

the grant of summary judgment upon this or any other issue in this

appeal.

Fite's claim of discriminatory denial of promotional

opportunities also fails. Fite bases her claim solely on the fact

that a white co-worker, Elizabeth Schultz, was tra nsferred to a

position that she (Fite) admittedly never inquired about. Not only

did appellant rec eive the only transfers she ever requested, she9

has also acknowledged that Schultz's new job entailed a lateral

transfer rather than a promotion. Furthermore, Fite has offered no

evidence to refute AER's proffered explanation for choosing Schultz

rather than appellant for the "puller" position, namely, that

Schultz was already familiar with the part location and numbering

system.

Fite also alleges that she was discharged for racially

discriminatory reasons. This wanton claim is completely

contradicted by the record, however, which indicates that AER acted

responsibly in its handling of Fite's termination. Not only did

AER make exceptions for Fite's study and medical needs, it also

went to pains to put her on notice of her unsatisfactory

performance. Additionally, in light of the fact that Gentry denies

any racial animus i n his dismissal decision, the fact that

approximately 85% of Fite's co-workers were also minorities, and

the absence of any evidence whatsoever offered by appellant to

support her charge, the grant of summary judgment upon this claim

of racial discrimination was correct.

An employee must show three things to establish a prima

facie case of retaliation

-- that she engaged in an activity

protected by Title VII, that an adverse employment action followed,

and that there was some causal connection between the activity and

the adverse action. C ollins v. Baptist Memorial Geriatric Center

,

937 F.2d 190, 193 (5th Cir. 1991), cert. denied

, U.S.

(1992). Fite supports her claim by noting the close temporal

proximity between the filing of the EEOC charge and her discharge.6 The former Rev. Civ. Stat. Ann. art. 8307(c) has been repealed and

replaced with Texas Labor Code § 451.001.

10 While this may raise an inference of a Title VII retaliation, AER

has fully met its burden of presenting a legitima te, nonretaliatory explanation for its decision to dismiss Fite. The

record indicates that Fite was terminated because she was late and

did not call her supervisor within thirty (30) minutes of her start

time. It has also been shown that appellant had been issued two

warnings prior to her termination, and Gentry, who made the

ultimate d ecision to fire Fite, did not find out about her EEOC

claim until two (2) days after her dismissal on November 23, 1991.

The only evidence offered by appellant that AER's legitimate,

nondiscriminatory reason was pretextual is deposition testimony

that other co-workers had equally poor absenteeism records but were

treated differently. Even if those employees were white, Fite

failed to generate a material issue of fact that they were

similarly situated and received preferential trea tment. Summary

judgment was proper for her EEOC retaliation claim.

Fite finally claims that she was terminated in violation

of article 8307(c) of the Texas labor laws in retaliation for

having filed three separate claims for workers' compensation during

the final two months of her employmen t. 6 In order to prevail on

this claim, Fite must offer some evidence of a causal connection

beyond her own subjective belief of retaliation. H ope v. MCI

Telecommunications Corp.

, 937 F.2d 258, 265 (5th Cir. 1991), cert

.

denied

, 504 U.S. 916 (1992). Fite must show that the filing of the7 As Fite filed her lawsuit in Dallas, she claims the test adopted by the

Fort Worth court is not binding precedent upon her claim. We bring her attention

to Williams v. GNB Batteries Technologies

, 1995 WL (March 30, 199 5), where the

Dallas Division of the Texas courts of appeals expressly applies the elements to a

similar claim.

11 claim(s) was a determining factor in her discharge. I d

. Fite

has not and cannot make this showing. Instead, she continues to

assert that the proximity in time between her filing for workers'

compensation and her dismissal is direct evidence of retaliation.

Additiona lly, Fite expressly rejects as controlling the test for

causal connection used by the district court as first explained in

Palmer v. Miller Brewing Co.

, 852 S.W.2d 57, 61 (Tex. App.--Fort

Worth 1993, writ denied). 7 P almer indicates that to demonstrate

existen ce of a causal link one must show: (1) knowledge of the

claim by those making the decision to terminate; (2) a negative

attitude toward the employee's in jured condition; (3) failure to

follow company policy when disciplining an employee who made a

claim; and (4) discriminatory treat ment when compared to other

employees wit h the same disciplinary problems. Recognizing that

this standard is controlling

, and assuming that AER knew of Fite's

five total compensati on claims and in all likelihood possessed a

negative attitude toward them, we find that appellant still has not

offered any evidence that AER failed to follow its own company

p olicy or that other employees with the same poor record she had

were treated any differently. Accordingly, this claim also fails.

For all the foregoing reasons, th e judgment of the

district court is AFFIRMED.