*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this opinion should not be published and is not precedent except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 circumstances set forth in 5TH CIR. R. 47.5.4.

1 Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 257

(5th Cir. 2001).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-30369

Summary Calendar

 

PATRICIA DEROUEN,

Plaintiff-Appellant,

versus

CARQUEST AUTO PARTS, INC.; GENERAL PARTS, INC. OF LOUISIANA;

GENERAL PARTS, INC.; and CARQUEST AUTO PARTS OF NEW IBERIA, INC.,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 00-CV-396

 

September 24, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Patricia Derouen appeals from the grant of summary judgment in

favor of the defendants on her hostile work environment and

constructive discharge claims. We review a grant of summary

judgment de novo, applying the same standard as the district

court.1 We may affirm a summary judgment on any ground raised by
2 Id. at 257-58.

3 Because we find that the sum of these allegations does not

rise to the level necessary to sustain a claim of hostile work

environment, we, like the district court, assume without deciding

that the first allegation regarding Derouen's co-worker's

attempting to touch her breast was properly before the district

court, notwithstanding the defendants' argument that this

allegation was not timely raised before the EEOC.

4 168 F.3d 871, 874-75 (5th Cir.), cert. denied, 528 U.S. 963

(1999).

2

the movant below and supported by the record, even if it is not the

ground relied on by the district court.2

Derouen has failed to raise a genuine issue of material fact

to support her claim of hostile work environment resulting from

sexual harassment. She claims that a co-worker attempted to grab

her breast and later put his hand on and rubbed her thigh and that

a customer twice made sexually threatening remarks to her.3 She

alleges that, because her supervisors did not respond to her

complaints about these incidents, she thereafter resigned to avoid

being further subjected to such behavior. These claims cannot be

meaningfully distinguished from those we found insufficient to

survive summary judgment in Shepherd v. Comptroller of Public

Accounts.

4 As in Shepherd, Derouen's allegations do not rise to

the level necessary, as a matter of law, to support a hostile work

environment claim under this circuit’s well-settled law: harassing
5 Id. at 873.

6 Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.

2001).

7 Id.

8 See Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000);

Casiano, 213 F.3d at 283; see also Butler v. Ysleta Indep. Sch.

3

conduct that affects a "term, condition, or privilege" of

employment.5

Derouen has also failed to raise a genuine issue of material

fact on her constructive discharge claim. Constructive discharge

requires evidence that the plaintiff’s working conditions were so

intolerable that a reasonable employee would feel compelled to

resign.6 To prove constructive discharge, the evidence must

demonstrate a greater severity or pervasiveness of harassment than

the minimum required to prove a hostile working environment claim.7

Because her constructive discharge claim relies on the same

evidence as her hostile work environment claim, Derouen cannot

survive summary judgment on this claim, either. Derouen’s claim

that her decision to resign was compelled by management’s failure

to act on her complaints does not increase the severity or

pervasiveness of the harassment to which she was allegedly

subjected.

The Ellerth/Faragher roadmap applies to supervisor sexual

harassment, not the co-worker and customer sexual harassment that

Derouen alleges.8 The framework for analyzing claims of sexual
Dist., 161 F.3d 263, 268-69 (5th Cir. 1998).

9 168 F.3d at 873-74; see also Sharp v. City of Houston, 164

F.3d 923, 929 (5th Cir. 1999) (stating that Ellerth and Faragher

did not alter the negligence standard which governs employer

liability for co-worker harassment).

4

harassment by co-workers remains, even after Ellerth and Faragher,

the principles governing hostile work environment claims

articulated in Shepherd.

9 Under these principles, the district

court did not err in granting summary judgment to the defendants.

AFFIRMED.