Revised December 3, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-50362

 

ROSE BUTLER; ERMA GRACIA

Plaintiffs-Appellants,

v.

YSLETA INDEPENDENT SCHOOL DISTRICT

Defendant-Appellee

 

Appeals from the United States District Court

for the Western District of Texas

 

November 16, 1998

Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We review the district court’s entry of judgment against two

teachers suing the Ysleta Independent School District for sexual

harassment. The district court granted summary judgment against

one and a motion for judgment as a matter of law against the other

following a jury verdict in her favor. We find that there was no

hostile environment actionable under Title VII, and affirm.

I.

Rose Butler and Erma Gracia were teachers in the East Point

Elementary School when they began receiving anonymous mail at their
2

homes. Gracia began receiving letters early in the fall semester

of 1992,and Butler began receiving similar letters sometime

thereafter. Some of the letters Gracia received suggested that she

would benefit from a romantic relationship: “You probably could use

a man in your life to calm some of that frustration down,” “A dude

a day keeps the crazes [sic] away!”, and “What You Need Is Few

[sic] good Men,” the last of which was affixed to a card containing

three personal ads from a local newspaper. Other mailings included

statements making no claims about Gracia’s romantic life, such as

“You are still trying to control everyone’s life [sic].” While some

of the letters were typewritten, others were more elaborate,

apparently composed on a personal computer and including varied

typography and occasional illustrations. 

The letters Butler received were similar to Gracia’s,

including for example notes stating, “When you drive down the

street you look like you’re pissed off,” and “When are you going to

start dressing like an adult? Don’t you have a mirror at home?”

Arguably the most offensive mailings to Butler were a greeting car

containing a picture of the naked buttocks of four women with a

caption stating that “the winner is you (for being the perfect

asshole),” and a cartoon entitled “Bitch Woman.”

Gracia began to suspect that someone from work was sending her

the letters, and she brought the letters to Principal Kirk Irwin.

In turn, Irwin called in Assistant Principal Kenneth Walker and

requested that he look into the letters. Gracia later inquired of
3

Walker whether something was being done. Gracia testified that he

stated that nothing was being done. Gracia also testified that

Walker handed her the letters and stated that he thought he knew

who had written them and that he would get back to her.

In April 1993, Gracia discovered that Butler had also been

receiving anonymous mail, in addition to prank phone calls.

Sometime also that spring, both teachers, along with at least 13

others, including 11 females, were assigned different grade levels

within the school, new assignments they did not want. Gracia and

Butler began to suspect that Irwin was responsible for the letters

they received. In part, Gracia became suspicious because the

unwanted grade reassignment occurred during Teacher Appreciation

Week. She also suspected Irwin because a letter Butler received

used the phrase “winds of change,” which was apparently a favorite

phrase of the principal’s, and because the misspellings of certain

words suggested Irwin’s authorship. Gracia testified that once she

began to suspect Irwin, she withdrew from a number of

extracurricular activities and started to leave school early.

Gracia and Butler nonetheless waited until the end of the school

year to report their suspicions. They testified that they waited

because the central office had always accepted Irwin back after

periods of absence and were afraid he would return.

In late May, Butler reported the anonymous mail to the El Paso

Police Department. Detective Scott Graves began investigating,

requesting that Irwin come to the police station. Irwin came on
4

July 1 but became upset when Graves requested that he submit to

fingerprinting. Irwin refused to give his prints. Detective

Graves also met that day with two Ysleta officials, Superintendent

Anthony Trujillo and Associate Superintendent Robert Durrett, to

request copies of any fingerprints of Irwin they had on file. He

hoped to match such fingerprints to one that he lifted from a

letter that Butler had given him, but Trujillo and Durrett

indicated that they had no such fingerprints. 

Trujillo and Durrett were previously unaware of the

plaintiffs’ allegations, but they had been investigating Irwin for

sending lewd faxes to male administrators. These faxes were

similar in execution and tone to the mailings Gracia and Butler

received. One, for example, stated, “On the underwear of life *

You are a poop stain,” and another stated, “Heard you were busy

making love to yourself.” One of these faxes was identical to the

mailing Butler received that urged the recipient to begin dressing

like an adult.

Durrett consulted with Mario Lewis, Ysleta’s attorney, who

then met with Graves. In an effort to obtain his fingerprints,

Lewis and Durrett enclosed materials in a plastic liner and on July

8 Lewis handed the packet to Irwin. Lewis also asked Irwin

directly if he had been harassing employees, although he may have

been inquiring only about the faxes to male employees. Graves

tested the plastic liner but found the fingerprints there

unsuitable. A warrant was issued to obtain Irwin’s fingerprints.
5

Meanwhile, the plaintiffs met with Durrett on July 13, 1993,

and again on July 19. Gracia testified that at the July 19

meeting, they requested that Durrett remove Irwin from the school

immediately, and that Durrett responded that there was a great deal

of support for Irwin at the central office. Durrett left the

matter to the police. On returning from a vacation, he called a

couple of times to check on the status of the police inquiry, but

did nothing more.

Graves, who had been sidetracked by an unrelated murder

investigation, found on August 5th that the fingerprint from the

letter Butler received matched Irwin’s. Shortly thereafter, Irwin

was suspended with pay and notified that Trujillo was contemplating

suspending him without pay and recommending his termination.

Trujillo ultimately allowed Irwin to take paid sick leave until

October 15, which was the effective date of his resignation. In

the meantime, the district appointed as interim principal Nancy

Evans, who refused to cancel Gracia’s and Butler’s grade level

reassignments.

Both teachers filed suit against Ysleta, claiming sex

discrimination under a “hostile work environment” theory pursuant

to Title VII. See 42 U.S.C. § 2000e. The defendant filed a motion

for summary judgment before Chief Judge Hudspeth, who granted it as

to Butler but denied it as to Gracia. The court found that

Gracia’s case raised a factual issue as to whether the school

district took prompt remedial action after she brought the
6

harassing letters to the attention of Irwin and Walker in December

1992, and followed up with Walker afterward. Butler, on the other

hand, notified no one in the district about her problem until July

1993. The court rejected Butler’s claims that the district had

“constructive knowledge” of the harassment on the basis of the

investigation of Irwin’s faxes to male administrators, or that

Irwin’s status as an agent for the school district made the

district liable. After July 1993, the court found, the district

took prompt and effective remedial action.

The case was subsequently transferred to Judge Furgeson, who

presided over a jury trial of Gracia’s claim. The jury rendered a

verdict in favor of Gracia in the amount of $35,000, and Gracia

filed a motion for judgment on the verdict. Ysleta, however, moved

for judgment as a matter of law notwithstanding the verdict

pursuant to Federal Rule of Civil Procedure 50(b), and the court

granted the motion. The court based its decision on three separate

grounds. First, it found that the letters Gracia received were not

so pervasive or severe as to create a hostile work environment,

emphasizing that no harassment occurred at work. Second, the court

found that the harassment did not alter a term or condition of her

employment. Third, the court found that the plaintiff failed to

establish that the defendant did not take prompt remedial action.

Separately, Gracia moved for sanctions against Ysleta or its

counsel for statements suggesting that the school district was poor

and self-insured, contrary to the judge’s decision on a motion in
7

limine barring such references. The court refused to sanction.

Gracia has appealed this refusal, and both plaintiffs appeal the

judgments entered against them.

II.

We are witnesses to the birth of a second generation of sexual

harassment law. The first generation was heralded by the D.C.

Circuit’s decision in Barnes v. Costle, 561 F.2d 983 (D.C. Cir.

1977), and the publication in 1979 by Catharine A. MacKinnon of

Sexual Harassment of Working Women. It reached maturity with

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), in which the

Supreme Court held that a hostile work environment could create a

valid Title VII claim. 

At the center of the second generation of sexual harassment

law are four important cases the Supreme Court decided last Term.

See Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) (finding

an employer vicariously liable for harassment where it failed to

exercise reasonable care to prevent the harassment); Burlington

Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) (finding an

employer subject to liability for harassment by a supervisor of an

employee, but allowing the employer an affirmative defense if no

tangible job action resulted); Gebser v. Lago Vista Ind. Sch.

Dist., 118 S. Ct. 1989 (1998) (finding a school not vicariously

liable for sexual harassment by a teacher of a student, when the

school did not have notice of the harassment); Oncale v. Sundowner
1These cases were decided after the district court issued its

decision. In reviewing the district court’s decision in Butler’s

case, we must therefore decide whether, under the Supreme Court’s

refined standards, there is a genuine issue of material fact

regarding an element of her case. See Hirras v. National R.R.

Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Similarly, with

respect to Gracia’s claims, we must decide whether “the facts and

inferences point so strongly in favor of the movant that a rational

jury could not arrive at a contrary verdict,” Waymire v. Harris

County, 86 F.3d 424, 427 (5th Cir. 1996), assuming that the jury

had been properly instructed. 

8

Offshore Servs., Inc., 118 S. Ct. 998 (1998) (holding that sex

discrimination consisting of same-sex sexual harassment is

actionable).1

These rulings were preceded by substantial work in the

academy, particularly scholarly commentators who reexamined the

theoretical underpinnings of sexual harassment law. See Kathryn

Abrams, The New Jurisprudence of Sexual Harassment, 83 Cornell L.

Rev. 1169 (1998); Anita Bernstein, Treating Sexual Harassment with

Respect, 111 Harv. L. Rev. 445 (1997); Katherine M. Franke, What’s

Wrong with Sexual Harassment?, 49 Stan. L. Rev. 691, 764 (1997);

Vicki Schultz, Reconceptualizing Sexual Harassment, 107 Yale L.J.

1683 (1998). While the nuances of these writers’ approaches to

sexual harassment differ, all emphasize that sexual harassment is

discrimination based on sex, not merely workplace behavior with

sexual overtones.

This clarification and refining of sexual harassment doctrine

come at an important time. The volume of sexual harassment

complaints filed with the Equal Employment Opportunity Commission
9

and state agencies has more than doubled since 1991. See

<http://www.eeoc.gov/stats/harass.html> (visited Oct. 13, 1998)

(reporting 6,883 complaints lodged in 1991, and 15,889 in 1997).

To ensure the continued vitality of Title VII as a remedy for the

sexual harassment wrong, this court must separate meritorious

claims from those that identify offensive conduct but do not state

a claim under Title VII. The claims here fall in this latter

category. While the letters the plaintiffs received were

undoubtedly immature and inappropriate, and while some of the

letters had a sexual content, a consideration of all the

circumstances does not permit the conclusion that the letters

created a hostile or abusive environment at the workplace.

The touchstone of our inquiry, of course, must be the

jurisprudence of the Supreme Court and the words of the statute

itself. The Burlington Court found that “the labels quid pro quo

and hostile work environment are not controlling for purposes of

establishing employer liability.” 118 S. Ct. at 2270-71. As the

Court noted, see id. at 2264, the terms “quid pro quo” and “hostile

work environment” do not appear in the relevant statute, 42 U.S.C.

§ 2000e-2(a)(1). This section forbids an employer “to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions or privileges of employment,

because of such individual’s ... sex.”
10

The Supreme Court distinguished between two classes of cases,

those in which “a supervisor takes a tangible employment action

against the subordinate,” 118 S. Ct. at 2268, and those where “the

agency relation aids in commission of supervisor harassment which

does not culminate in a tangible employment action,” id. at 2269.

We will consider these in order.

“Tangible employment actions are the means by which the

supervisor brings the official power of the enterprise to bear on

subordinates. A tangible employment decision requires an official

act of the enterprise, a company act.” Id. at 2269. When a

supervisor takes such an action, the action by the supervisor

becomes the action of the employer. See id. In such cases, the

employer is necessarily liable. Although the Supreme Court did not

concisely define “tangible employment action,” it did note that

such an action “constitutes a significant change in employment

status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision

causing a significant change in benefits.” Id. at 2268. It also

stated that such an action “in most cases inflicts direct economic

harm.” Id. at 2269.

The plaintiffs suffered no tangible employment action as a

result of Irwin’s conduct. Even assuming that Gracia withdrew

from extracurricular activities as a result of the letters, as she

claims, this does not constitute a “change in employment status”

under the Supreme Court definition. The plaintiffs also claim that
2The employer may offer an affirmative defense consisting of

two elements. Specifically, the employer must show that it

“exercised reasonable care to prevent and correct promptly any

sexually harassing behavior,” and “that the plaintiff employee

unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to avoid harm

otherwise.” Id. Given our conclusion that there was no hostile

environment, we need not address whether a reasonable jury could

11

Irwin’s decision to reassign them to different grade levels

constituted a tangible employment action. We need not decide,

however, whether teaching at one grade level entails “significantly

different responsibilities” from teaching at another, for two

reasons. First, the plaintiffs have offered no evidence connecting

their grade level reassignments to the letters they received, and

the reassignment of a number of other employees suggests no such

evidence exists. Second, the plaintiffs’ grade reassignments were

ultimately reversed. While Gracia complains that the interim

principal initially did not want to allow her to teach at her

customary grade level, she admitted that she was allowed to do so

after another teacher offered to trade with her. Thus, even if an

employment action was contemplated, or even favored, by the school

district, none occurred.

We thus turn to the second class of sexual harassment

violations identified by the Supreme Court. Even if no tangible

employment action is taken against an employee, an employer may be

vicariously liable “for an actionable hostile environment created

by a supervisor with immediate (or successively higher) authority

over the employee.” Id. at 2270.2
conclude that the employer failed to meet its affirmative defense.

3The Court further noted that “simple teasing, offhand

comments, and isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the terms and conditions of

employment.” Faragher, 118 S. Ct. at 2283 (internal quotation marks

omitted).

12

The Court clarified the definition of “hostile environment,”

however, by noting that the conduct must be “severe or pervasive.”

Id. at 2264. The Court elaborated this in Faragher: “[I]n order to

be actionable under the statute, a sexually objectionable

environment must be both objectively and subjectively offensive,

one that a reasonable person would find hostile or abusive, and one

that the victim in fact did perceive to be so.” 118 S. Ct. at 2283

(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)).

Whether an environment meets this standard depends on “‘all the

circumstances,’ including 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.’” Id.

(quoting Harris, 510 U.S. at 23).

3

A reasonable jury could determine that Gracia and Butler were

offended and even frightened by the letters that they received. A

reasonable person, however, could not perceive the work environment

itself to be hostile or abusive. The factors specifically

enumerated by the Supreme Court all militate toward this

conclusion. Cf. DeAngelis v. El Paso Mun. Police Officers Ass’n,
13

51 F.3d 591, 594-96 (5th Cir. 1995) (finding no liability after

evaluating the factors elaborated in Harris in a case involving

anonymous messages in a workplace newsletter).

First, the allegedly discriminatory conduct--consisting of

occasional letters--was infrequent. See id. at 596 (finding that

“[f]our printed derogatory references to [the plaintiff] at

irregular intervals in two and a half years do not evince

sufficient hostility toward her as a matter of law”). We do not

place undue weight on this factor, however. Even occasional

anonymous letters can be frightening, and irregular receipt of such

letters may be even more disarming than letters that arrive like

clockwork and become an expected nuisance for which the victim may

be prepared. Perhaps it is part of a stalker’s modus operandi to

surprise a victim when she least expects it. Nonetheless, the

frequency factor affords plaintiffs little or no support.

Second, the conduct was less severe than, for example, public

circulation or display of similar targeted messages would have

been. One scholar, for example, has found the circulation of

pornographic materials in the workplace problematic because it

would “mark the workplace as an arena in which masculinity is

appropriate or even constitutive.” Abrams, supra, at 1211. The

individual receipt of letters apparently coming from a single

individual does not mark the workplace at all, because it does not

demonstrate a communal effort to define who is welcome in the

workplace.
14

Third, the statements in the letters received by the

plaintiffs were also not threatening. As with the first factor,

however, we do not place much weight on this consideration, given

the anonymous nature of the correspondence. The anonymity of a

letter may itself make it threatening, even if the content is

innocuous. A threatening statement, such as “I am watching you,”

is more threatening still when the author is unknown. But here,

the anonymous notes had no threatening content whatsoever. At

worst, a reasonable person receiving such messages could be afraid

that someone dislikes her and objectifies her. We do not diminish

the hurt that comes with such knowledge, but we do not find that it

supports a finding that a workplace environment is hostile.

Fourth, the correspondence would not interfere unreasonably

with a reasonable person’s work performance. It is relevant that

the letters were received at home, and not at work. To be sure,

any unpleasant happenings in an individual’s home life may affect

work performance. A teacher may become less energetic after a

personal tragedy, but we know that does not make the work

environment itself hostile. Here, the plaintiff specifically

suspected that the writer was someone from work, and she turned out

to be correct, but it was not specifically work performance that

was affected. The workplace itself is central to the wrong of

sexual harassment. See, e.g., Abrams, supra, at 1219 (identifying

the “ultimate harm or wrong of sexual harassment” as the

perpetuation of “the workplace as a site of male control, where
15

gender hierarchy is the order of the day and masculine norms

structure the working environment”); cf. Bernstein, supra, at 495

(arguing that the central concern in a hostile work environment

case is whether the employer has treated employees with respect).

While none of the Supreme Court’s four factors thus supports

plaintiffs’ effort to state a claim, the Supreme Court’s command

that courts look to “all the circumstances” indicates that the list

is not exclusive. Our jurisprudence suggests a factor related to

but distinct from the second and fourth factors above, whether the

complained of conduct undermined the plaintiffs’ workplace

competence. See DeAngelis, supra, at 593 (“A claim for a sexually

hostile working environment is not a trivial matter. Its purpose

is to level the playing field for women who work by preventing

others from impairing their ability to compete on an equal basis

with men.”). The letters here commented on the plaintiffs’

personal lives and habits, but did not state or suggest that they

or women in general were incompetent to be teachers. 

Contrary to the children’s rhyme, all insults, like sticks and

stones, can hurt, but this does not mean that all insults are

tortious. As Schultz has persuasively argued, the “core component

of [hostile work environment] harassment is conduct designed to

undermine a woman’s competence.” Schultz, supra, at 1769; see also

id. at 1762 (“[M]uch of the behavior that creates a hostile work

environment is conduct that has the purpose or effect of

undermining the perceived or actual competence of women (and some
16

men) who threaten the idealized masculinity of those who do the

work.”); cf. Franke, supra, at 772 (arguing that for conduct to

constitute sexual harassment, it must be “a practice, grounded and

undertaken in the service of hetero-patriarchal norms”).

That some of the letters plaintiffs received contained sexual

content is irrelevant. To be sure, sexualized comments or pictures

can undermine competence; for example, a cartoon suggesting that

women are incapable of teaching on account of their sex might

undermine the ability of women to teach. A plaintiff, however,

must show that implicit or explicit in the sexual content is the

message that the plaintiff is incompetent because of her sex, and

the plaintiffs cannot draw such a connection here.

That Irwin sent messages to male administrators further

indicates that the correspondence did not undermine the plaintiffs’

competence. To be sure, as the Supreme Court decided in Oncale, a

man can be guilty of sexually harassing other men, and presumably

an individual could be guilty of sexually harassing both men and

women. But Oncale was not a hostile environment case, and, under

the circumstances of this case, Irwin’s sending of offensive

materials to both men and women is evidence that the workplace

itself, while perhaps more sexually charged than necessary, was not

sexually charged in a way that made it a hostile environment for

either men or women. Indeed, the Supreme Court in Oncale

explicitly recognized that sexual content is not the Title VII

talisman:
17

We have never held that workplace harassment, even

harassment between men and women, is automatically

discrimination because of sex merely because the words

used have sexual content or connotations. ‘The critical

issue, Title VII's text indicates, is whether members of

one sex are exposed to disadvantageous terms or

conditions of employment to which members of the other

sex are not exposed.’

Id. at 998 (quoting Harris, supra, at 25 (Ginsburg, J.,

concurring)). Butler and Gracia were not exposed “to

disadvantageous terms or conditions of employment,” and they are

thus not entitled to relief.

III.

We now turn to the district court’s refusal to impose

sanctions. Rulings on sanctions are subject to an abuse-ofdiscretion standard. See Willy v. Coastal Corp., 855 F.2d 1160,

1172 (5th Cir. 1988). Perhaps there is a case of such

inappropriate conduct by trial counsel that a district court would

be required to impose sanctions, but this is not that case.

IV.

For the reasons above, we AFFIRM the judgments of the district

court.

AFFIRMED.