*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 circumstancesset forth in 5THCIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-50299

MONICA C. BUENROSTRO,

Plaintiff-Appellant,

VERSUS

FLIGHT SAFETY INTERNATIONAL, INC.; FLIGHT SAFETY TEXAS, INC.,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Texas, San Antonio

SA-99-CV-819

 February 25, 2003

 

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

This appeal concerns a Title VII emplo yment discrimination action brought by PlaintiffAppellant Monica C. Buenrostro (Buenrostro), against her former employer, Defendants-Appellees
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Flight Safety International, Inc. and Flight Safety Texas, Inc. (Flight Safety). Buenrostro's original

complaint was filed against Flight Safety on July 29, 1999, and contained four causes of action that:

(1) Flight Safety engaged in unlawful gender discrimination by sexual harassment; (2) Flight Safety

retaliated against Buenrostro following her complaints regarding the sexual harassment; (3) Flight

Safety defamed Buenrostro; and, (4) Flight Safety discriminated against Buenrostro on the basis of

her national origin.

Flight Safety filed an answer to Buenrostro's original complaint on September 30, 1999. On

October 25, 1999, Flight Safety filed a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6) of the FederalRules of Civil Procedure, which was granted by the district court on June 21,

2000. In its order of dismissal, the district court permitted Buenrostro to amend her complaint.

Buenrostro filed her first amended complaint on July 6, 2000. Flight Safety responded by

filing a second Rule 12(b)(6) motion and a second answer. Flight Safety then filed a motion for

summary judgment concerning Buenrostro's claim of defamation on July 24, 2000. A second motion

forsummaryjudgment wasfiled byFlight SafetyconcerningBuenrostro's claims ofsexualharassment

and retaliation on July 26, 2000. Flight Safety also filed a third motion for summary judgment

concerning the basis ofBuenrostro's calculation of damages on July27, 2000. Buenrostro filed timely

responses to these motions in August 2000.

On March 2, 2001, a magistrate judge issued a report and recommendation concluding that

Buenrostro's claimofsexualharassment and hostile work environmentshould be dismissed for failure

to state a claim for which relief may be granted, and that the claims of retaliation and defamation

should be dismissed on summary judgment. On March 28, 2001, the district court adopted the

magistrate judge's report and recommendation over Buenrostro's objections, and issued a judgment
2We note that Flight Safety filed a Motion for Partial Summary Judgment on this issue and

that Buenrostro had an opportunity to respond that motion.

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in favor of Flight Safety. Buenrostro filed a motion for a new trial on April 6, 2001, which was

denied by the district court on February 22, 2002. Buenrostro appeals the district court's judgment

granting Flight Safety's motion to dismiss for failure to state a claim for which relief may be granted

on the issue of sexual harassment, hostile work environment. Buenrostro also appeals the district

court's granting of summary judgment on the issues of constructive discharge, retaliation, and

defamation. Buenrostro, however, does not appeal the district court's granting of summary judgment

on her national origin and disparate impact discrimination claims.

Having carefully reviewed the entire record in this case, and having fully considered the

parties' respective briefing on the issues in this appeal, we REVERSE the portion of the district

court's judgment granting Flight Safety's motion to dismiss for failure to state a claim on the issue of

sexual harassment, hostile work environment. Buenrostro's original complaint and amended

complaints clearly stated a claim concerning that issue.

Nevertheless, based on our review of the record, we conclude that the district court should

have granted summary judgment on the sexual harassment, hostile work environment claim.2 A party

is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law. Celotex v.

Catrett, 477 U.S. 317, 322 (1986). The movant can meet this burden by showing that the nonmoving party has failed to present evidence in support ofsome element of his case on which he bears

the ultimate burden of proof. Id. at 322-323.
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When considering a sexual harassment, hostile work environment claim, courts look to the

"frequency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's

work performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Here, Buenrostro

asserts that her former supervisor, Don Roney (Roney), discriminated against her because of her

gender as evidenced by being hired based on her appearance, being invited to lunch, being

complimented on her appearance, being disfavored in comparison to another woman who allegedly

was Roney's paramour, and a change in attitude after Buenrost ro refused Roney's advances.

However, these complained of actions do not qualify as conduct egregious enough to constitute

discrimination based on sex or to alter the conditions of employment to such an extent as to do away

with her equal opportunity in the workplace. See, e.g., Ellert v. Univ. of Texas, 52 F.3d 543, 544

(5thCir. 1995) (rejecting a claim when a supervisor was "overly friendly and charming" at lunch, and

upholding a summary judgment when the plaintiff alleged "that she had been discriminated against

because of her refusal ofthe [supervisor's]sexual advances and for her knowledge of hisindiscretions

with his assistant"); Causey v. Ford Motor Co., 516 F.2d 416, 421 (5th Cir. 1975) (holding that a

complainant cannot challenge alleged discriminatory practice when she benefitted by being hired

through that practice). See also Black v. Zaring Homes, Inc., 104 F.3d 822, 827 (6th Cir. 1997)

(rejecting a claimwhen supervisorstated "I love to be around beautifulwomen");Weiss v. Coca-Cola

Bottling Co. of Chicago, 990 F.2d 333, 334 (7th Cir. 1993) (rejecting a claim when a supervisor

"ask[ed] [plaintiff] for dates"); Baskerville v. Culligan Int'l Co., 50 F.3d 428, 433 (7th Cir. 1995)

(rejecting a claimwhen supervisor called plaintiff a "pretty girl"); Scott v. Sears, Roebuck & Co., 798

F.2d 210, 211 (7th Cir. 1986) (rejecting a claim when supervisor "repeatedly propositioned
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[plaintiff]").

Furthermore, we AFFIRM the district court's granting of Flight Safety's motion forsummary

judgment on the claims of constructive discharge, retaliation, and defamation for the reasons stated

by the court . We note that the record makes it clear that Buenrostro cannot succeed on her

constructive discharge and retaliation claims. A constructive discharge claim must demonstrate that

the conditions at work were "so difficult or unpleasant that a reaso nable person in the employee's

shoes would have been compelled to resign." Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th

Cir. 2001). The elements that a plaintiff must establish for a retaliation claim are: (1) the plaintiff

engaged in activity protected byTitle VII;(2) an adverse employment action occurred; and, (3) there

was a causal connection between the participation in the protected activity and the adverse

employment action. Landgraf v. USI Film Products, 968 F.2d 427, 431 (5th Cir. 1992).

Buenrostro's own deposition testimony states that she left work on her own initiative after

having an argument with her new supervisor Amparo Calatayud, concerning an incident involving a

temporary employee. This argument was completely unrelated to Roney and any of Buenrostro's

allegations of discrimination. Moreover, the argument occurred four months after Buenrostro's

alleged protected activity. There is no evidence that Buenrostro's resignation was the result of

conditions so unpleasant or difficult that she was co mpelled to resign; nor is there any causal link

between her resignation and her protected activity.

Therefore, we REVERSE the portion ofthe district court'sjudgment granting Flight Safety's

motion to dismiss for failure to state a claim on the issue of sexual harassment. However, we hold

that there is no genuine issue as to any material fact concerning Buenrostro's claim of sexual

harassment and that Flight Safety is entitled to a judgment as a matter of law. We AFFIRM the
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district court's judgment on all of the other issues appealed.

REVERSED in part, RENDERED in part, and AFFIRMED in part.