United States Court of Appeals

Fifth Circuit



## FILED

December 13, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-40418

MOLLY HARVILL,

Plaintiff-Appellant,

versus

WESTWARD COMMUNICATIONS, L.L.C., ET AL.,

Defendants,

WESTWARD COMMUNICATIONS, L.L.C.;

WESTWARD COMMUNICATIONS, LP,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Plaint iff Molly Harvill (“Harvill”) broug ht this suit against her employer, Westward

Communications (“Westward”) , alleging claims for sexual harassment, constructive discharge and

retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.

, and for unpaid

overtime compensation under the Fair Labor Standards Act, 29 U.S.C. § 201 e t seq . The district

court granted summary judgment in favor of Westward on the grounds that (1) the alleged harasser’s2

conduct was not sufficiently severe and pervasive to constitute a hostile wor k environment, (2)

Harvill did not establish that Westward failed to take prompt remedial action once it learned of the

alleged harassment, (3) Harvill faile d t o exhaust her administrative remedies before the Equal

Employment Opportunity Commission (EEOC) as to her constructive discharge claim, (4) Harvill

could not establish constructive discharge, which was also the basis for her retaliation claim, and (5)

there was a paucity of evidence to support her claim for unpaid overtime compensation under the Fair

Labor Stand ards Act. She appeals the district court’s grant of summary judgment as to her sexual

harassment, retaliation and unpaid overtime compensation claims . For the following reasons, we

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Molly H arvill brought this action alleging that she had been repeatedly subjected to sexual

harassment by a co-worker. In January of 2001, she began working with the Grand Saline Sun (“the

Sun ”) as an office manager for the newspaper. The paper is owned by Westward Communications.

During a new employee orientation, Harvill received a company handbook that included an

explanation of the company’s anti-harassmen t po licies. The handbook stated that if an employee

believed that she was being harassed, she was to directly inform her immediate supervisor. If speaking

with the supervisor did not provide sufficient recourse, then the employee must direct her complaint

to the Director of Human Resources.

On October 11, 2001, Harvill, along with fellow emp lo yee Lado nna Allison Hockman

(“Hockman”), alleged to their immediate supervisor Nell French, the publisher of the Sun

, that they

had been sexually harassed by Oscar Rogers, who operated a commercial printing press within the

Sun ’s offices. French then initiated an investigation into the allegations, speaking with several female3

employees of the Sun about whether they were cognizant of any inappropriate behavior by Rogers.

Additionally, French spoke with former employees to determine whether they too had information

regarding allegations of Rog e rs’ having sexually harassed female employees at the Sun; however,

French never spoke with Rogers, who remained unaware of any sexual harassment allegations being

made against him.

Harvill claimed that Rogers continued to sexually harass her even after she had reported his

condu ct t o French. Harvill approached French two or three times to inform her that Rogers’

inappropriate behavior was continuing. Finally, in February of 2002, Harvill informed Westward that

she would be filing an EEOC charge against the company based on Rogers’ continuing conduct. Gina

Fisher, Westward’s Director of Human Resources, then launched her own i nvestigation. Fisher

contacted Rogers and informed him that sexual harassment allegations had been made against him.

Fisher also alerted French that Harvill claimed that she was sti ll being harassed by Rogers. Fisher

further spoke with an employee of the Sun named Aggie McDonald. Harvill and Hockman claimed

that McDonald would substantiate their claims. McDonald had alleged that Rogers had accidently

brushed up against her more than a decade earlier; however, contrary to Harvill’s representation of

McDonald’s declarations, McDonald told Fisher that she did not believe that he had intended anything

untoward. Indeed, McDonald asserted that, to her knowledge, Rogers had never behaved

inappropriately towards any female employee.

Harvill and Fisher scheduled a telephone conversation for February 21, 2002, during which

Harvill described Rogers’ conduct towards her, which included several alleged instances of lewd and

inappropriate touching. When Fisher queried Harvill as to why Harvill had not brought these4

complaints to her earlier, Harvill asserted tha t she had been expressly instructed by her supervisor

French not to ever go above French’s head on any matters.

Fisher immediately ordered that Rogers no longer work in close physical proximity to either

Harvill or Ho ckman, who had both made allegations of sexual harassment against him. Fisher

continued to interview numerous former and current employees of the Sun

. F isher’s investigation

uncovered no evidence specifically corroborating Harvill’s or Hockman’s allegations regarding

Rogers. On March 13, 2002, Fisher informed both Ro gers and French of the results of her

investigation. She also instructed Rogers to avoid direct interaction with Harvill and Hockman. Less

than a week later, Fisher met with Harvill and informed Harvill that she was unable to uncover

sufficient corroborating evidence to support Harvill’s allegations and warrant further company action

against Rogers.

On March 25, 2002, Harvill sought leave under the Family Medical Leave Act (FMLA), 29

U.S.C. § 2601 et seq . She was informed by Fisher that her job and benefits would remain in place,

and that her leave fell under the auspices of the FMLA. Wit hin a relatively short period of time after

she had taken her leave, Harvill tendered her resignation, asserting that this was at the behest of her

physician. Shortly thereafter, Harvill br ought thi s acti on c laiming, inter alia, sexual harassment,

constructive discharge, and retaliation. Westward eventually moved for summary judgment, and the

motion was granted. This timely appeal ensued.

II. DISCUSSION

A. Standard of Review

A party’s motion for summary jud gment will be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there5

is no genuine issue as to any material fact and t hat t he moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56 (c). The moving party has the burden of demonstrating that there

are no genuine issues of material fact in dispute. Celotex Corp. v. Catrett

, 477 U.S. 317, 323 (1986).

“ If t he record, taken as a whole, could not lead a rational trier of fact to find for the non-moving

party, then there is no genuine issue for trial.” S teadman v. Texas Rangers

, 179 F.3d 360, 366 (5th

Cir. 1999). We review the district court’s grant of summary judgment de novo and apply the same

legal standards that t he district court applied to determine whether summary judgment was

appropriate. Lamar Adver. Co. v. Cont’l Cas. Co. , 396 F.3d 654, 659 (5th Cir. 2005).

B. Sexual Harassment Claim

Harvill first argues that the district court erred in granting summary judgment for Westward

on her sexual harassment claim because substantial evidence exists that the harassing conduct was

severe or pervasive, and that her employer failed to take prompt remedial action.

Harvill can establish that she was sexually harassed in violation of Title VII by proving, inter

alia, that the harassment created a hostile or abusive working environment. Woods v. Delta Beverage

Group, Inc.

, 274 F.3d 295, 298 (5th Cir. 20 0 1). To establish a hostile work environment claim,

Harvill must demo nst rat e that: (1) she is member of a protected group; (2) she was the victim of

uninvited sexual harassment; (3) the harassment was based on sex; (4) t he harassment affected a

“term, condition, or privilege” of Harvill’s employment; and (5) her employer knew or should have

known of the harassment and failed to take prompt remedial action. Id. at 298.

The parties agree that Harvill has established the first three elements of her prima facie case;

they only dispute whether the h arassment affected a “term, condition, or privilege” of Harvill’s6

employment, and whether Westward knew or should have known of the harassment and failed to take

prompt remedial measures.

1. Whether the harassment affected a term, condition, or privilege of employment

“For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter

the conditions of [the victim’s] employment and create an abusive working environment.’” Meritor

Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67 (1986) (alteration in original) (quoting Henson v. City

of Dundee

, 682 F.2d 897, 904 (11th Cir. 1982)). In determining whether an environment is “hostile”

or “abusive” within the meaning of Title VII, courts look at the totality of the circumstances including

“the fr equency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliat ing, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s

work performance.” Harris v. Forklift , 510 U.S. 17, 23 (1993). We have also considered whether

the complained of conduct undermines the plaint iff’s workplace competence. Hockman v. Westward

Commc’ns

, 407 F.3d 317, 326 (5th Cir. 2004) (ci ting B utler v. Ysleta Indep. Sch. Dist.

, 161 F.2d

263, 270 (5th Cir. 1998)). “To be actionab le, t he challenged conduct must be both objectively

offensive, meaning t hat a reaso nable person would find it hostile and abusive, and subjectively

offensive, meaning that the victim perceived it to be so.” Shepherd v. Comptroller of Pub. Accounts

,

168 F.3d 871, 874 (5th

Cir. 1999) (citing Harris , 510 U.S. at 21-22).

The district court held that the harassment by Rogers was not so severe and pervasive that

it altered the terms and conditions of Harvill’s employment. In requiring Harvill to establish that the

conduct was both severe and pervasive, the district court applied the wrong legal standard. As quoted

above, the Supreme Court has stated that Title VII provides a legal remedy to vict ims who establish

that the abusive conduct was severe or pervasive. Meritor 477 U.S. at 67; see also Harris

, 510 U.S.7

at 21; Clark County Sch. Dist. v. Breeden

, 532 U.S. 268, 270 (2001); Faragher v. Boca Raton

, 524

U.S. 775, 786 (1998) (quoting Meritor

, 477 U.S. at 67); Burlington Indus., Inc. v. Ellerth

, 524 U.S.

742, 752 (1998); Hostetler v. Quality Dining, Inc.

, 218 F.3d 798, 808 (7th Cir. 2000) (“Harassment

need not be severe and pervasive to impose liabilit y; one or the other will do.”). The district court’s

error may have resulted from i nconsistent application of the “severe or pervasive” standard in this

circuit. Compare Hockman

, 407 F.3d at 326, 329 (“severe and pervasive”), and Shepherd

, 168 F.3d

at 874 (same (quoting Weller v. Citation Oil & Gas Corp.

, 84 F.3d 191, 194 (5th Cir. 1996))), with

Septimus v. Univ. of Houston

, 399 F.3d 601, 611 (5th Cir. 2005) (“severe or pervasive”), FarpellaCrosby v. Horizon Health Care

, 97 F.3d 803, 806 (5th Cir. 1996) (same), Carmon v. Lubrizol Corp.

,

17 F.3d 791, 794 (5th Cir. 1994) (same), and Indest v. Freeman Decorating, Inc.

, 168 F.3d 795, 802

(5th Cir. 1999) (Weiner, J. , specially concurring) (emphasizing that the standard is the disjunctive

severe or pervasive). Nevertheless, the Supreme Court’s decisions are controlling and we correctly

stated the standard originally in Waltman v. International Pa per , 875 F.2d 468, 477 (1989);

therefore, subsequent incorrect statements o f the test are not binding. S ee, e.g.

, H&D Tire &

Automotive-Hardw are, Inc. v. Pitney Bowes Inc.

, 227 F.3d 326, 330 (5th Cir. 2000) (“When panel

opinions appear to conflict, we are bound to follow the earlier opinion.”).

Contrary to being an irrelevant distinction, as Westward’s counsel asserts, the requirement

that a plaint iff establish that reported abusive cond uct be both severe a nd pervasive in order to be

actionable imposes a more stringent burden on the plaint iff than required by law. The Supreme Court

has stated that isolated incidents, if egregious, can alter the terms and conditions of employment. See

Faragher

, 524 U.S. at 788; see also Worth v. Tyer

, 276 F.3d 249, 268 (7th Cir. 2001) (“[W]e have

often recognized that even one act of harassment will suffice [to create a hostile work environment]8

if it is egregious.”); Lockard v. Pizza Hut, Inc.

, 162 F.3d 1062, 1072 (10th Cir. 1998) (holding that

a single incident of physically threatening and humiliat ing conduct can be sufficient to create a hostile

work environment for a sexual harassment claim); Tomka v. Seiler Corp. , 66 F.3d 1295, 1305 (2d

Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth , 524 U.S. 742 (1998)

(“[E]ven a single incident of sexual assault sufficiently alters the conditions of the vict im’s

employment and clearly creates an abusive work environment for the purposes of Title VII liabilit y.”).

By contrast, under a conjunctive standard , infrequent conduct, even if egregious, would not be

actionable because it would not be “pervasive.”

Harvill alleges that Rogers’ harassment began in July 2001 and continued until Gina Fisher,

the Director of Human Resources, confronted Rogers with the allegations in February 2002. In her

deposition, Harvill testified that, during that seven-month period, Rogers grabbed her and kissed her

on the cheek, popped rubber bands at her breasts, fondled her breasts “numerous times,” patted her

on her buttocks “nu mero us times,” and came behind her and rubbed his body against her. At one

point, Harvill estimated that Rogers touched her breasts or her buttocks perhaps as often as once a

week–although she later stated that it may not have been as often as once a week. She also claims that

on one occasion Rog ers made comments to her about her sex life and her abilities in bed. Harvill

stated that she protested every time Rogers touched her breasts and she also protested when Rogers

would pat her b uttocks. Undoubtedly, the deliberate and unwanted touching of Harvill’s int imate

body parts can constitute severe sexual harassment. See, e.g.

, Worth

, 276 F.3d at 268 (“[D]i rect

contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”).

Viewing the evidence in the light most favorable to Harvill, the non-movant, we conclude that a

reasonable jury could find that Rogers’ conduct was sufficiently severe or pervasive to alter a term9

or condition of Harvill’s employment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475

U.S. 574, 587 (1986) (stating that the inquiry on summary judgment is whether the evidence could

lead a rational trier of fact to find for the non-moving party); see also Anderson v. Liberty Lobby,

Inc. , 477 U.S. 242, 248 (1986).

The district court concluded, and Westward stringently urges on appeal, tha t “Harvill’s

allegations of ‘numerous touchings or fondlings’ and ‘numerous butt grabbings’ [ w ere] too

conclusory as to create a n issue o f material fact on her harassment claim.” H arvill v. Westward

Communications, LLC , 311 F. Supp. 2d 573, 582 (E.D. Tex. 2004). We disagree. Harvill recalled

that the first incident of harassment occurred in July 2001, after Rogers had returned from a vacation

and she walked back to his office area to give him a message. She conte nds that he used the

opportuni ty to grab her and kiss her on h er cheek. She stated that sometime after that, Rogers

touched her breast for the first time in the hallway leading to the front office, and she described the

exchange t hat occurred as a result of the touching. She recalled the circumstances surrounding

occasions when Rogers popped rubber bands at her breast and patted her on her buttocks, and she

listed individuals who allegedly witnessed the events. Additionally, she recalled a conversation in

which Rogers questioned her about her sex life and told her that a te chnician from Ramirez Air

Conditioning, who she had dated many years prior, had allegedly told him that she was skilled in bed.

We do not agree that Harvill’s allegations are too conclusory to permit a fact finder to assess the

totality of the circumstances. Harvill’s assertions that she was touched “numerous times” instead of

providing exact dates or the exact number of instances do not render her allegations so conclusory

that they fail to create a genuine issue of material fact. Cf. Torres v. Pisano

, 116 F.3d 625, 631 (2d

Cir. 1997) (finding that the ability to recall the exact dates and circumstances of only a few of t he1 Again, we emphasize that the district court erroneously applied the conjunctive “severe

and pervasive” standard rather than the disjunctive “severe or pervasive” standard.

10 incidents of harassment may make it “difficult to con vince a jury that pervasive harassment in fact

took place,” but do not defeat the plaint iff’s claim as a matter of law). To require that Harvill provide

precise dates for the occurrences or provide an exact number of occurrences to support her

allegations is an onerous burden not required by law. Whether her allegations are too vague to

ultimately carry the day is a credibility determination, or requires weighing the evidence, both of

which are more appropriately done by the trier of fact. See M oore v. Willis Indep. Sch. Dist. , 233

F.3d 871, 874 (5th Cir. 2000) (stating that the court cannot make credibility determinations or weigh

any evidence on a summary judgment motion). Accordingly, the district court erred in concluding that

Harvill did not raise a genuine issue of fact as to whether Rogers’ alleged conduct towards Harvill

was sufficiently severe and pervasive 1 such that it altered the terms and conditions of her employment.

2. Whether Westw

ard failed to take prompt remedial action

The district court also held that Harvill failed to establish the fift h prong of a prima facie case

for a hostile work environment sexual harassment claim; specifically, she did not show that Westward

failed to take prompt remedial action upon being informed of the harassment.

We h ave observed that determining “[w]hether an employer’s response to discriminatory

conduct is sufficient ‘will necessarily depend on the particular facts of the case,’” such as the remedial

steps taken and the severity of the harassment. Hirras v. Nat’l. R.R. Passenger Corp.

, 95 F.3d 396,

399-400 (5th Cir. 1996) (quoting Waltman

, 875 F.2d at 479). “When a company, once informed of

allegations of sexual harassment, takes prompt remedial action to protect the claimant, the company

may avoid Title VII liabilit y.” Nash v. Electrospace Sys., Inc.

, 9 F.3d 401, 402 (5th Cir. 1993).11

“Prompt remedial action must be reasonably calculated to end the harassment,” therefore, Westward

may be held liable “despite having taken remedial steps if [Harvill] can establish that [Westward’s]

response was not reasonably calculated to halt the harassment.” Skidmore v. Precision Printing &

Packaging Inc. , 188 F.3d 606, 615-16 (5th Cir. 1999) (internal quotation marks omitted).

We have also recognized that an employee must take advantage of corrective opportunities

pr o vided by the employer. W oods

, 274 F.3d at 300 n.3. Nonetheless, if an employee believes that

bringing a subsequent sexual harassment complaint wou ld be futile, or “it becomes objectively

obvious that the employer has no real intention of stopping the harassment, the harassed employee

is not obligated to go through the wasted motion of reporting the harassment.” Id. at 300-01.

Harvill informed her supervisor, Nell French, of the harassment in October 2001. She argues

that French failed to take prompt remedial action and, as a result, the harassment continued for four

more months. She claims that French’s investigation was not reasonably calculated to end the

haras sm ent because French did not confront Rogers or interview the appropriate witnesses. Westward

counters that French did take remedial action, by investigating the allegations; however, French found

that the claims could not be substantiated and, therefore, further remedial steps were unnecessary.

Westward also argues that Harvill unreasonably failed to follow the company’s procedure for lodging

a harassment complaint because Harvill did not bring her complaint to higher management when she

became dissatisfied with the way French handled t he sit uat ion. When Harvill did contact Human

Resources, the company immediately separated Rogers and Harvill, after which time Harvill concedes

that all harassment ceased. Therefore, Westward contends that it did take prompt remedial action that

was calculated to end the harassment after Harvill bypassed Fre nch and took advantage of the

corrective opportunities made available to her. The district court granted summary ju dgment for2 As it relates to our prior discussion of “severe or pervasive” standard, we note the two

cases are distinguishable. Harvill stated that Rogers touched her breasts “numerous times” and

would pat her buttocks. She also averred that she protested every time Rogers touched her

breasts and she also protested when Rogers would pat her buttocks. As previously stated, we find

that the harassment Harvill endured satisfies the disjunctive standard. By contrast, Hockman

alleged that “Rogers ‘would sort of brush up against [her]’” and she admitted that “these

brushings were neither severe nor pervasive.” Hockman , 407 F.3d at 326 (emphasis added). In

her deposition testimony, Hockman admitted that she did not protest when he brushed up against

her because the incidents were over before she had the chance to say anything. “In fact, at first she

thought they were accidental, stating that ‘just as quickly as [an incident] started, . . . it ended ....

And once it was over, it was over.’” Id. (second omission in original).

12 Westward on this basis because it concluded that Harvill unreasonably failed to follow the company

procedure for lodging a complaint, and once she did, prompt remedial action was taken. Harvill

claims that the district court’s ruling was in error because the court did not take into account that she

and her co-worker, Hockman, reported their allegations on more than one occasion to French, but

did not init ially go to Human Resources because they were directly commanded by French to never

go over French’s head on any matters.

Hockman asserted similar claims against Rogers in a Title VII action in federal court and on

a ppeal t his court denied her relief. S ee Hockman

, 407 F.3d 317. The facts presented here are

distinguishable from the factual circumstances in Hockman specifically as they relate to whether the

harassment was “severe or pervasive.” 2 Notwithstanding the unique factual scenario Harvill presents

regarding her interactions with Rogers, we find that the fift h prong, namely the remedial measures

Harvill sought and received from Westward, is t he dispositive issue and it is on this issue that our

prior opinion in Hockman is instructive. Because the record before us is substantially similar to the

record in Hockman as to this dispositive issue, the fates of Hockman and Harvill are intertwined. In

Hockman

, this court held that Hockman “unre asonably failed to bring her complaint to a higherechelon employee (Fisher) [even] though she was dissatisfied with the way French handled the13

situation.” 407 F.3d at 329. The Hockman court concluded that Hockman could not establish that

Westward failed to take prompt remedial action because:

(1) Hockman received the Westward employee handbook containing the company’s

anti-harassment policy; (2) the policy provides that if the employee does not feel that

her allegation is being handled satisfactorily by his or her supervisor, then she should

report the incident directly to the Director of Human Reso urces; (3) she

acknowledged her receipt of the handbook and understanding of its provisions with

her signature; and (4) despite her awareness, there is no eviden ce that Hockm an

availed herself of any of the company’s provisions after speaking to French, several

months after the alleged harassment began.

Id. at 329-30. The court found it irrelevant that Hockman and Harvill were provided with an outdated

copy of the anti-harassment policy. The Hockman court also found it irrelevant that

, at an employee

meeting concerning an unrelated event, French had emphatically told Harvill and Hockman that they

were never to go over her head about anything.

As in Hockman

, Harvill acknowledged that she signed a document stating that she received

Westward’s employee handbook. The employee handbook outlined the company’s anti-harassment

policy and stated that “[i]f the employee feels that it would be inappropriate to report the matter to

the immediate supervisor or the matter is not satisfactorily resolved at this level, the employee should

report the incidents directly to the director, Human Resources . . . .” Harvill also conceded that the

document she signed acknowledging receipt of the employee handbook stated that it was the

obligation and responsibility of the employee to read an d be familiar with the contents of the

handbook. Harvill and Hockman approached French together in October 2001 to present their claims

of sexual harassment by Rogers. On more than one occasion, both Harvill and Hockman approached

French after the October meeting to report that the harassment was c o nt inuing but did not inform

Human Resources of their complaints. Both women also stated that the harassment completely ceased14

after an attorney

, acting on behalf of both Harvill and Hockman, finall y sent a letter to Robert

McMaster, the Chief Executive Officer of West w ard, and Gina Fisher, Westward’s Director of

Human Resources, to inform Westward of Rogers’ behavior.

As it concerns Harvill’s familiarit y with the anti-harassment policy and the steps she took to

inform her employer of the alleged harassment, the circumstances in Hockman and in the case at bar

are not just similar but identical. Harvill and Hockma n each signed a document in which she

acknowledged receipt of the employee handbook and stated that she understood the anti-harassment

policy. Moreover, they acted in concert in informing their empl o yer o f the alleged harassment.

Because the circumstanc es in H ockman and in the case at bar are indistinguishable as to this fift h

prong, we conclude that we are bound by this court’s decision in Hockman that, on these particular

facts, the employee unreasonably failed to take advantage of corrective opportuni t ies provided by

Westward. See Lowrey v. Tex. A & M Univ. Sys.

, 117 F.3d 242, 247 (5th Cir. 1997) (“[O]ne panel

of this court cannot overrule the decision of another panel

. . . .”). Once the CEO and Director of

Human Resources were notified of Harvill’s claims, Westward acted swift ly in taking remedial

measures and the harassment ceased. Harvill has not raised a genuine issue of fact on the p rompt

remedial action element of her prima facie hostile work environment claim; therefore, we affirm the

district court’s grant of summary judgment for Westward.

C. Retaliation Claim

Harvill also argues that there is sufficien t evidence to support her claim that Westward

retaliated against her for filing a sexual harassment complaint. She contends that after she filed her

sexual harassment complaint, she heard her new supervisor say he would get a bonus if he ran her off;

a bogus racial harassment charge was brought against her; an unknown individual began taking15

pictures of her outside of the offices; and the other supervisors and co-workers treated her in a hostile

manner. She argues that she w as constructively discharged because all of these circumstances

combined to create intolerable working conditions, which ultimately caused her to resign on advice

of her doctor.

To establish a

prima facie retaliation claim, Harvill must prove that: (1) she engaged in an

activity that Title VII protects; (2) Westward carried out an adverse employment action; and (3) a

causal nexus exists between her protected activity and Westward’s adverse action. Chaney v. New

Orleans Pub. Faci lity Mgmt., Inc. , 179 F.3d 164, 167 (5th Cir. 1999). The filing of an EEOC

complaint is clearly a protected activity within the meaning of the statute. Walker v. Thompson

, 214

F.3d 615, 629 (5th Cir. 2000). Thus, Harvill has satisfied the first prong of her prima facie case.

Co nst ructive discharge is the adverse employment action that is the basis for Harvill’s

retaliation claim. In ord er t o est ablish a prima facie case of retaliation based on constructive

discharge, Harvill “must prove that ‘working conditions would have been so difficult or unpleasant

that a reasonable person in [her] shoes would have felt compelled to resign.’” Landgraf v. USI Film

Products

, 968 F.2d 427, 429-30 (5th Cir. 1992) (quoting Bourque v. Powell Electrical Mfg. Co.

, 617

F.2d 61, 65 (5th Cir.1980)).

In dete rmining whether a reasonable employee would feel compelled to resign, we

have considered the relevancy of the following events:

(1) demotion; (2) reduction in salary; (3) reduction in job r espo nsibilities; (4)

reassignment to menial or degrading work; (5) reassignment to work under a younger

supervisor; (6) badgering, harassment, or humiliation by the employer calculated to

encourage the employee’s resignation; or (7) offers of early retirement [or continued

employment on terms less favorable than the employee’s former status] . . . .

Bro w n v. Kinney Shoe Corp.

, 237 F.3d 556, 566 (5th Cir. 2001) (alteration in original) (quoting

Brown v. Bunge Corp

. , 207 F.3d 776, 782 (5th Cir.2000)). “ Discrimination alone, w ithout16

aggravating factors, is insufficient for a claim of constructive discharge

. . . .” Kinney Shoe

, 237 F.3d

at 566. Harvill “must

demo nst rate a greater severity or pervasiveness of harassment than the

minimum required to prove a hostile working environment.” Landgraf , 968 F.2d at 430.

The district court concluded that Harvill did not exhaust her administrative remedies as to

this claim because she failed to allege constructive discharge in her EEOC complaint. Consequently,

the court granted summary judgment to Westward on Harvill’s constructive discharge claim. Aside

from constructive discharge, Harvill has not alleged any adverse employment action that could serve

as a basis for a retaliation claim. Thus, the court held that her retaliation claim must fail because the

court could not consider her constructive discharge argument.

Even assu ming arguendo that the district court could have considered her constructive

discharge argument, we still conclude that Harvill’s allegations of retaliatory conduct do not preclude

summa ry judgment. I n her affidavit, Harvill asserts that she was “treated rudely and with general

hatefulness” by other supervisors and employees; that a man she did not know began taking pictures

of her; that a meritless racial harassment charge was brought against her; and that she heard a new

supervisor state that he would receive a bonus if he ran her off. Aside from conclusory allegations,

Harvill has presented no summary judgment evidence to substantiate her claims. S ee Ugalde v. W.A.

McKenzie Asphalt Co.

, 990 F.2d 239, 242 (5th Cir. 1993). Moreover, even if we were to accept

these allegations, Harvill has not alleged any aggravating factors that would render the harassment

so intolerable that a reasonable employee would feel compelled to resign. See id. ; Ward v. Bechtel

Corp.

, 102 F.3d 199, 202 (5th Cir. 1997). Accordingly, Harvill has not raised a genuine issue of

material fact as to the second prong o f her prima facie case, i.e., whether she suffered an adverse17

employment action, and the district court did not err in granting summary judgment to Westward on

t his claim.

D. Fair Labor Standards Act Claim

Finally, Harvill argues that the district court erred i n grant ing summary judgment for

Westward as to her FLSA claim for unpaid overtime because substantial evidence exists that she was

required to keep false time sheets, which resulted in her not being paid for approximately 210 hours

of overtime. The district court held that Harvill failed to present sufficient evidence that she was not

properly compensated for overtime work or that her employer was aware that she was engaging in

the unpaid overtime work.

The Fair Labor Standards Act mandates that “no employer shall employ any of his employees

. . . for a workweek l o nger than forty hours unless such employee receives compensation for his

employment in excess of the hours above specified at a rate not less than one and one-half times the

regular rat e at which he is employed.” 29 U.S.C. § 207 (a)(1). “‘An employer who is armed wit h

[knowledge that an employee is working overtime] cannot stand idly by and allow an employee to

perform overtime work without proper compensation, even if the employee does not make a claim

for the overtime compensation.’” Newton v. City of Henderson

, 47 F. 3d 746, 748 (5th Ci r. 1995)

(alteration in original) (quoting Forrester v. Roth’s I.G.A. Foodliner, Inc. , 646 F.2d 413, 414 (9th

Cir. 1981)). “[I]f the ‘employee fails to notify the employer or deliberately prevents the employer

from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours

is not a violation of § 207.’” Id. (quoting Forrester , 646 F.2d at 414).

An e mplo yee bringing an action pursuant to the FLSA, based on unpaid overtime

compensation, must first demonstrate that she has performed work for which she alleges she was not18

compensated. See Anderson v. Mount Cle mens Pottery Co. , 328 U.S. 680, 687-88 (1946). An

employee has met her requisite burden of proof

if [she] proves that [she] has in fact performed work for which [she] was improperly

compensated and if [she] produces sufficient evidence to show the amount and extent

of that work as a matter of just and reasonable inference. The burden sh ifts to the

employer to come forward with evidence of the precise amount of work performed

or with evidence to negative the reasonableness of the inference to be drawn from the

employee’s evidence. If the employer fails to produce such evidence, the court may

then award damages to the employee even though the result may only be approximate.

Id.

In the district court, Harvill’s argument aga inst summary judgment on her FLSA claim

consisted of her unsubstantiated assertions that French required her to turn in false time sheets, and

that Westward “clearly suffered or permitted” her to work overtime. She contended that it was up

to the jury to decide who was t elling the truth. She offered no factual allegations at all to substantiate

her claim, and she presented no evidence of the amount or the extent of hours she worked without

compensation. Mo reover, she presented no evidence that Westward was aware that she worked

overtime hours without compensation. On appeal, Harvill only adds to her argument the assertion that

she worked 210 hours of unpaid overtime. Again, she offers absolutely no evidence that she actually

worked the hours she alleges, or that Westward was aware that she worked overtime hours without

compensation. Harvill has failed to raise a genuine issue of material fact as to whether she went

uncompensated for overtime work. Accordingly, the district court did not err in granting summary

judgment for Westward on Harvill’s FLSA claim.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment for

Westward on Harvill’s sexual harassment, retaliation and Fair Labor Standards Act claims.19