1 United States Court of Appeals,

Fifth Circuit.

No. 94-10859

Summary Calendar.

Patricia Louise ELLERT, Plaintiff-Appellant,

v.

UNIVERSITY OF TEXAS, AT DALLAS, Defendant-Appellee.

May 18, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before POLITZ, Chief Judge, DAVIS and DeMOSS, Circuit Judges.

POLITZ, Chief Judge:

Patricia Louise Ellert appeals an adverse judgment dismissing

her sexual harassment suit against her former employer , the

University of Texas at Dallas. Finding no error, we affirm.

Background

In December 1988 the University of Texas at Dallas hired

Ell ert as a secretary for its Dean of Graduate Studies. Her

relationship with the Dean initially was quite amicable.

In August 1989, whi le having lunch with the Dean, Ellert

claims that she felt compelled to drink a glass of wine and that on

the return to their vehicle the Dean drew uncomfortably close to

her while they were crossing th e street. On the way back to the

University, they stopped at the Dean's home and while they were

conversing his wife entered the room. Ellert alleges that this

made her uncomf ortable. Subsequent to this uncomplained-of

incident, the Dean neither touched Ellert again nor did he commit1 42 U.S.C. § 2000e, et seq.

2

any offensive act whatever; however, Ellert alleges that he was

"overly friendly and charming."

In March 1990 Ellert entered the Dean's office unannounced and

saw the Dean embracing a female assistant. Although neither the

Dean nor Ellert ever spoke of this event, Ellert claims that his

attitude toward her changed and that their relationship took a

marked turn for the worse. She began receiving more frequent

reprimands and in February 1991 she received a negative evaluation

from th e Dean and a warning that she was under observation for

dismissal. On March 14, 1991 Ellert was terminated by the Dean,

allegedly for failing to prepare properly materials needed by the

Dean for presentation to his superiors. Ellert does not question

the inadequacy in the preparation of the materials but claims that

her error was blown out of proportion.

After satisfying administrative prerequisites, Ellert filed

suit against the University, alleging that she had been

discriminated against because of her refusal of the Dean's sexual

advances and for her knowledge of his indiscretions w ith his

assistant, all in violation of Title VII of the Civil Rights Act of

1964, as amended. 1

The University moved fo r summary judgment, claiming, i nter

alia, that Ellert's claims based on actions occurring before March

of 1990 were time-barred, and that the Dean's relationship with his

assistant did not create a hostile work environment. Although

Ellert conceded in her response that she was not making any claims3

bas ed upon the Dean's behavior during that time, she maintained

that her claim was predicated not upon a hostile work environment

theory but, rather, upon a quid pro quo sexual harassment theory.

In support of this claim, Ellert alleged that her employment

conditions were adversely affected when the Dean finally realized

that she would be unreceptive to his repeated "subtle" advances

after her discovery of his secret relationship with his assistant;

alternatively, she argued that her conditions of empl oyment were

adversely affected solely because of her discovery of the

indiscretion.

The district court granted the motion, citing Ellert's failure

to show the existence of quid pro quo sexual harassment and finding

that Ellert had not shown that she was subjected to any unwelcome

sexual harassment. The court rejected her theory that the Dean's

relationship with his assistant, when coupled wit h his "overly

friendly" behavior someho w indicated that he was attempting to

seduce her. Finally, the court rejected her claim that the

repercussions following her inadvertent discovery constituted

legitimate grounds for a claim of employment discrimination,

concluding that, even assuming Ellert's discharge was due to this

knowledge, this was a gender-neutral reason for termination outside

the protective scope of Title VII. Ellert timely appealed.

Analysis

Ellert maintains that the district court erred in ruling that

she failed to make a quid pro quo sexual harassment claim. A grant

of summary judgment is reviewed de novo under the same standard as2 Lindsey v. Prive Corp., 987 F.2d 324 (5th Cir.1993).

3 42 U.S.C. § 2000e-2(a)(1).

4 Jones v. Flagship International, 793 F.2d 714 (5th

Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d

1001 (1987).

5 Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190

(5th Cir.1991), cert. denied, 502 U.S. 1072, 112 S.Ct. 968, 117

L.Ed.2d 133 (1992).

4 that applied by the district court. 2 Summary judgment is required

when the evidence, viewed in the light most favorable to the

nonmoving party, presents no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.

Title VII bars discrimination in employment "against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's ... sex." 3

Any employer requiring sexual favors from an employee as a quid pro

quo for bestowing job ben efits upon that employee violates Title

VII. 4 In order to show that she was the subject of q uid pro quo

sexual harassment, Ellert must demonstrate:

—that she is a member of a protected group;

—that she was subject to unwelcome sexual harassment;

—that the complained-of harassment was based upon sex;

—that her reaction to the harassment affected tangible aspects

of the terms and conditions of he r employment, with her

acc eptance or rejection of the harassment being either an

express or implied condition to receipt of a benefit to or the

cause of a tangible adverse effect on the terms or conditions

of her employment; and, finally,

— respondeat superior. 5

The ultimate issue in considering a summary judgment motion6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986).

7 Armstrong v. City of Dallas, 997 F.2d 62, 66 (5th

Cir.1993).

8 The one incident involving arguably sexual advances by the

Dean is clearly time-barred. 42 U.S.C. § 2000e-5(d) requires

that in order to preserve a claim, a plaintiff must file a

complaint with the EEOC within 180 days of the allegedly

discriminatory employment action. As Ellert failed to file her

complaint until September 1991, any claim relating to the August

1989 incident, if it had any validity, has prescribed.

5 in a case of this type is whether the evidence of unl a wful

discrimination, or lack thereof, is so compelling that the moving

party should prevail as a matter of law. 6 In evaluating the

propriety of summary judgment on Ellert's discrimin ation claim,

"the question before us is whether the evidence in the summary

judgment record establishes, as a matter of law, that [Ellert] was

not the victim of discrimination by [her] employer." 7

The evidence, when viewed in the light most favorable to

Ellert, fails to establish any sexual harassment by the Dean that

is not time-barred. 8 After the August 1989 incident he did not

discuss sexual matters, cause any physical contact, or make any

threats or promises related to her rejection or acceptance of his

affections. Further, the gravamen of Ellert's claim is that her

association with the Dean changed as a result of her discovery of

his relationship with his assistant and not as a result of

rejection of his advances. The summary judgment evidence of the

claimed unlawful discrimination toward Ellert via her claim of quid

pro quo sexual harassment does not pass muster and the dismissal of

her Title VII claim was appropriate.9 29 C.F.R. § 1604.11(g) provides that

[w]here employment opportunities or benefits are

granted because of an individual's submission to the

employer's sexual advances or requests for sexual

favors, the employer may be held liable for unlawful

sex discrimination against other persons who were

qualified for but denied that employment opportunity or

benefit.

10 See DeCintio v. Westchester County Medical Center, 807

F.2d 304, 306-307 (2d Cir.1986), cert. denied, 484 U.S. 825, 108

S.Ct. 89, 98 L.Ed.2d 50 (1987) ("The proscribed differentiation

under Title VII ... must be a distinction based on a person's

sex, not on his or her sexual affiliations."); Candelore v.

Clark County Sanitation District, 752 F.Supp. 956, 960

(D.Nev.1990), aff'd, 975 F.2d 588 (9th Cir.1992) ("[P]referential

treatment of a paramour, while perhaps unfair, is not

discrimination on the basis of sex in violation of Title

VII....").

11 See Smith v. Liberty Mutual Ins. Co., 569 F.2d 325 (5th

Cir.1978); Ulane v. Eastern Airlines, 742 F.2d 1081 (7th

6 Ellert, however, insists that she personally does not have to

be the subject of unwelcome quid pro quo sexual harassment in order

t o recover under Title VII, claiming that she need only link her

disch arge to the Dean's unwelcome sexual harassment of his

assistant. She contends that she has set forth an actionable Title

VII claim by showing that the harassment gave rise to conditions

that led to his decision to terminate her, specifically her

discovery of the harassment of the assistant.

Ellert invites our attention to authority for the proposition

that a Title VII claim can be based upon a supervisor's voluntary

sexual relations with a subordinate. 9 This proposition has not

been widely accepted. 10 Most circuits refuse to extend Title VII

to employment decisions that are not dire ctly related to

impermissible gender-based distinctions. 11 In those cases in whichCir.1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85

L.Ed.2d 304 (1985); Sommers v. Budget Marketing, Inc., 667 F.2d

748 (8th Cir.1982); DeSantis v. Pacific Telephone & Telegraph

Co., 608 F.2d 327 (9th Cir.1979).

12 See King v. Palmer, 778 F.2d 878 (D.C.Cir.1985) (implicit

recognition of Title VII action alleging discrimination due to

favored treatment of paramour); Toscano v. Nimmo, 570 F.Supp.

1197 (D.Del.1983) (supervisor's grant of promotion to lover over

plaintiff sufficient to predicate liability under Title VII).

7 Title VII was extended to allow recovery based upon a supervisor's

voluntary sex ual relationship with a subordinate, the claims

usually were premised upon the paramour receiving some form of

preferential treatment over the claimant. 12

In the instant case, however, Ellert does not allege that the

assistant received preferential treatment over her because of the

existence of a sexual relationship with the Dean; rather, she

asserts that she was discharged because of her knowledge of what

she alone characterizes as an illegal and unwelcome relationship.

Even if her knowledge of the affair was the true animus behind the

discharge decision, it was a motivation that did not rely upon her

gender and, as such, it was not within the ambit of Title VII's

protections.

Accordingly, the judgment of the district court is AFFIRMED.