* 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should not be published and is not precedent except under the limited circumstances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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-40272

Summary Calendar

_______________

VICKI J. MEDDERS,

Plaintiff-Appellant 

Cross-Appellee,

VERSUS

AUSTIN COLLEGE,

Defendant-Appellee 

Cross-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

(4:94-CV-307)

_________________________

November 7, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Vicki J. Medders appeals a summary judgment in favor of Austin

College on various claims arising out of her alleged sexual

harassment by a college employee. Finding no error, we affirm.
2
3

I.

Medders, an employee of the physical plant at the college,

alleges that she was sexually harassed by Audis Murphy, another

employee of the physical plant. According to Medders, she notified

Kay Garner, a co-worker, on approximately November 30, 1992, that

she had refused Murphy’s request that she sleep with him. Medders

similarly told Garner that Murphy had threatened to rape her.

Medders refused to pursue the matter further at that time,

believing that Murphy’s behavior was a passing event.

In December 1992 or January 1993, Medders reiterated her

complaints to Garner and also complained to Harry Goodman, her

immediate supervisor in the physical plant, that a male employee in

the physical plant had threatened to rape her. Goodman encouraged

Medders to pursue her complaint with the college's Sex Harassment

Committee, but Medders refused to identify Murphy as the perpetrator and asserted that she would handle the matter herself. Finally

in February 1992, after Murphy allegedly threatened to rape Medders

and kill her family, Medders complained again to Garner, Goodman,

and Karen Nelson, director of the Sex Harassment Committee,

identifying Murphy as the perpetrator.

Medders was placed on paid leave pending the college's

investigation of the incident, and Murphy also was instructed to

take leave of his job and remain away from Medders until the matter

could be resolved. Two days later, after college officials had

investigated the complaints and interviewed Medders and Murphy (at
2 The parties contest whether she was fired or abandoned her job.

4

which time Murphy denied the accusations and insisted that he and

Medders had had a consensual affair several years prior), they

encouraged Murphy to take early retirement and instructed him to

stay away from Medders. Murphy resigned the following day.

Upon her return to work, Medders was offered, and she

accepted, free harassment advice and counseling with a faculty

member at the college, which counseling continued for six weeks.

When Medders elected not to enroll in the major medical insurance

offered by the college to all employees, Medders continued the

counseling at her own expense. 

Medders left the college's employ in March 19942 after filing

the instant action alleging causes of action under title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., the

Americans with Disabilities Act, 42 U.S.C. § 12112, et seq., and

state law claims of intentional infliction of emotional distress

and retaliatory discharge. The district court granted the

college's motion for summary judgment on all claims. 

 

II.

We review a grant of summary judgment de novo. See Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,
5

together with the 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.” FED. R. CIV. P. 56(c). 

A.

Medders first argues that the district court erred in finding

that the college took prompt remedial action at the time it knew or

should have known about Murphy’s sexual harassment. Whether the

remedial action was prompt requires an investigation of when the

college received actual or constructive notice of the harassment.

To establish an actionable claim of sexual harassment in the

work place, a plaintiff must demonstrate (1) that she belongs to a

protected class; (2) that she was subject to unwelcome harassment;

(3) that the harassment was based upon sex; (4) that the harassment

affected a “term, condition or privilege of employment”; and

(5) that the employer either knew or should have known of the

harassment and failed to take prompt remedial action. See Jones v.

Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied,

479 U.S. 1065 (1987). Because the college conceded the first four

elements for the purpose of its summary judgment motion, we

consider only the fifth.

Medders asserts first that constructive notice attached on

November 30, 1992, the date upon which she first notified Kay

Garner, a co-worker, that Murphy had approached her about having
6

sex. Because Garner had served on the Sex Harassment Committee,

which service had ended in 1992, Medders contends that the

college's “failure to disseminate the information related to

resignations and new appointments” to the committee caused her to

rely to her detriment upon Garner’s apparent authority to act with

respect to such matters. “A prerequisite to a proper finding of

apparent authority is evidence of conduct by the principal relied

upon by the party asserting the estoppel defense which would lead

a reasonably prudent person to believe an agent had authority to so

act.” Ames v. Great Southern Bank, 672 S.W.2d 447, 450 (Tex. 1984)

(citation omitted).

The college's failure to disseminate information about the

committee resignation, on its own, is not sufficient conduct by the

principal to support apparent authority. Furthermore, Medders’s

reliance on such conduct is not reasonable; Medders easily could

have asked Garner whether she was still a member of the committee.

Because Garner had no apparent authority to bind the college, she

could not have imputed constructive notice of the harassment to the

college as of her November 30, 1992, conversation with Medders.

Medders next argues that Austin had constructive notice of the

harassment as of her December 1992 conversation with Harry Goodman,

a supervisor, in which Medders told Goodman that a male employee

had threatened to rape her. It is undisputed that on this occasion

Medders refused to identify Murphy as the male employee and that
7

Goodman encouraged Medders to contact the Sex Harassment Committee

to pursue further her allegations. Medders refused Goodman’s

advice, however, saying that she would handle the situation

herself.

Notwithstanding this interchange, Medders contends that,

because of the severe nature of the threats involved, Austin had a

duty independently to obtain the identity of the harasser and that

this duty estops Austin from denying constructive notice. Citing

Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1422

(7th Cir. 1986), Medders notes correctly that “an employer who has

reason to know that one of his employees is being harassed . . .

and does nothing about it is blameworthy.” 

Medders neglects the remainder of the paragraph, however, in

which the court explains that such “reason to know” arises only

where the harassment is “so egregious, numerous and concentrated as

to add up to a campaign of harassment.” Id. Medders’s single

complaint to Goodman, coupled with her refusal to identify Murphy

as the perpetrator and her rebuffing of Goodman’s suggestion that

she pursue the matter further with the committee, does not rise to

an actionable level. Goodman did not turn a deaf ear to Medders’s

allegations, but rather responded appropriately under the circumstances.

We agree, therefore, with the district court that the college

lacked constructive notice of Murphy’s harassment of Medders until
8

February 1993, at which time Medders told Goodman and Murphy, among

others, that Murphy himself had threatened to rape her and kill her

family. It is undisputed that this complaint was sufficient to

provide the college with notice, and it is from this date that we

now measure the promptness and effectiveness of the college's

remedial action.

Once an employer has notice of harassment, it must take prompt

remedial action in response. See Jones, 793 F.2d at 719-20.

Remedial action must be “reasonably calculated” to end the

harassment, see id., including appropriate discipline directed at

the offending party. See Waltman v. International Paper Co., 875

F.2d 468, 479 (5th Cir. 1989). What is appropriate remedial action

depends upon the facts and circumstances of each individual

caseSS”the severity and persistence of the harassment, and the

effectiveness of the initial remedial steps.” See id. 

It is undisputed that immediately upon hearing Medders’s

allegations, Goodman excused Medders to go home on leave with pay

and excused Murphy with instructions not to speak with Medders nor

to return to work until instructed. Goodman then contacted the

Vice President and Director of Personnel to set up a meeting with

those parties and Medders, subsequent to Medders’s meeting with the

Sex Harassment Coordinator and Faculty Advisor. Medders was given

an opportunity to reiterate her allegations and then returned home

on paid leave. 
3 We also disagree with Medders that the fact that she was required to use

her sick leave and vacation time for counseling juxtaposed with the college's

grant of retirement benefits to Murphy “demonstrates a conscious, deliberate

pattern of gender discrimination and an affirmance of Murphy’s wrongful conduct.”

9

Murphy met with the same group twice in the subsequent two

days, during which meetings he vehemently denied the accusations

and reported that he and Medders had had a consensual affair years

earlier. Murphy was advised to resign with his retirement benefits

and instructed not to appear at the physical plant (Medders’s work

place), save for the benefits administration office. Murphy

acquiesced, and Medders remained on paid leave until March 3, 1993.

Medders objects to the adequacy of the college's remedial

action because “[t]here is a genuine issue of material fact as to

whether simply allowing Murphy to retire with full benefits while

refusing to make accommodations to the Plaintiff constituted prompt

and appropriate remedial action.” Whether Medders likes or

dislikes Murphy’s retirement package is inapposite to an evaluation

of the adequacy of the remedial action. We have required only that

employers take steps “'reasonably calculated' to halt the harassment,” see id., and removing Murphy from the workplace and

enjoining his contact with her, is in fact so reasonably calculated

to end the harassment.3 

Furthermore, the college provided Medders, upon her return to

work, six weeks worth of free harassment advice and counseling with

a faculty member on the committee. The free counseling was
4 Medders continued with counseling at her own expense.

5 Again, we note that the parties contest whether Medders was fired or

abandoned her job.

10

terminated only because Medders later elected not to enroll in the

major medical insurance offered to all employees.4 In light of the

prompt and effective remedial action, “[t]he uncontested evidence

demonstrates a model of prompt, sensitive employer handling of

these very traumatic issues.” Nash v. Electrospace Sys., Inc.,

9 F.3d 401, 404 (5th Cir. 1993) (per curiam).

B.

Medders next alleges that the college's decision to terminate5

her employment in March 1994 was motivated by her filing workers’

compensation and EEOC claims and thus was impermissibly retaliatory. To establish a retaliation claim, a plaintiff must prove

(1) that she engaged in activity protected by title VII; (2) that

an adverse employment action occurred; and (3) that a causal

connection existed between the participation in the protected

activity and the adverse employment action. See Shirley v.

Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992). The

employee bears the burden of establishing the causal link, which

may be shown by circumstantial evidence. See Palmer v. Miller

Brewing Co., 852 S.W.2d 57, 61 (Tex. App.SSFort Worth 1993, writ

denied). The employer may then rebut the allegations by showing a

legitimate reason for the discharge. Id. 
6 Medders mistakenly cites Palmer’s discussion of the use of circumstantial

evidence to prove a causal link in support of her pretext argument. As Palmer

notes, however, such evidence is not apposite to challenge pretext, but only to

(continued...)

11

Without deciding whether Medders has met her burden, we note

that the college has proffered a non-discriminatory reason for its

terminationSSMedders’s unsatisfactory work performance, tardiness,

and absenteeism, as documented in Goodman’s letter to Medders of

March 9, 1994. See Texas Division-Tranter, Inc. v. Carrozza, 876

S.W.2d 312, 314 (Tex. 1994) (holding that employer is entitled to

summary judgment when it proffers a legitimate, non-discriminatory

reason for termination and the employee fails to controvert such

evidence). Among the deficiencies Goodman notes in his letter are

(1) over fifteen dates from December to February during which

Medders either left early, arrived late, or failed to appear for

work; (2) Medders’s failure to correct problems in job performance

that had been brought to her attention in two previous meeting with

Goodman in January and February; (3) Medders’s failure to inform

Goodman in advance of her leaving for doctors’ appointments; and

(4) her failure to concentrate on her work product.

Medders objects to the college's proffered rationale,

suggesting that its contention of diminished work performance is

merely a pretext to an unlawful discharge. Medders offers no

contradictory evidence, however, other than her own affidavit

denying Goodman’s charges and the affidavit of a student coworker.6 The co-worker’s affidavit does not even deny each of
6(...continued)

establish a priori that a causal link exists, which then shifts the burden to the

employer to proffer a nondiscriminatory reason for discharge. See 852 S.W.2d at

61-62. 

Medders also offers, as evidence of the causal connection between her

termination and the protected activity, Goodman’s letter to her of August 1993

explaining the procedures for filing a workers’ compensation claim in which

Goodman also notes that, once a claim is filed with the carrier, the college may

lose control over the her files for the purposes of maintaining confidentiality.

Although we have noted in dicta that a manager’s statement that he could not

investigate a harassment claim without revealing the victim’s identity coupled

with others managers’ suggestions that an investigation would be detrimental to

the victim, evinced an attempt to dissuade the victim from seeking an

investigation, see Waltman, 875 F.2d at 480, such is not the case here. Having

reviewed Goodman’s letter in the context of the other evidence proffered by

Medders, we disagree that “[c]learly Goodman knew of the fear that Plaintiff had

of Murphy . . . and utilized this knowledge in an attempt to intimidate her from

filing her Worker’s Compensation Claim.”

12

Goodman’s charges, but merely attempts to establish that Goodman

“seemed to have a negative, sexist, chauvinistic attitude toward

women. I felt he talked down to women, was condescending and

showed no respect in general.” Such conclusory, subjective beliefs

are not competent summary judgment evidence and are insufficient to

call into question the proffered rationale for Medders’s termination. See Carrozza, 876 S.W.2d at 314.

C.

Medders next challenges the dismissal of her intentional

infliction of emotional distress claim, arguing that the district

court failed to inquire whether the college's conduct in response

to her complaints of harassment (not Murphy’s conduct itself for

which the court properly found that the college could not be held

liable) is actionable. To establish intentional infliction of
7 We disagree with Medders that Dean stands for the proposition that a

litany of complaints creates a cognizable claim of intentional infliction.

Because we noted in Dean that the “check incidents” alone were sufficient to

support the claim, we did not consider the rest of the plaintiff’s complaints.

See 885 F.2d at 307.

13

emotional distress, a plaintiff must show (1) that the defendant

acted intentionally or recklessly; (2) that the defendant’s conduct

was extreme and outrageous; (3) that the defendant’s conduct caused

the plaintiff emotional distress; and (4) that the emotional

distress suffered was severe. See Twyman v. Twyman, 855 S.W.2d

619, 621 (Tex. 1993).

We simply disagree that the litany of complaints Medders

lodges in the wake of her harassment complaint rises to the level

of extreme and outrageous conduct that it “utterly intolerable in

a civilized community.” Dean v. Ford Motor Credit Co., 885 F.2d

300, 306 (5th Cir. 1989).7 As discussed above, the college handled

an unfortunate situation with adequate and prompt remedial action

and attempted to accommodate Medders’s fragile emotional state and

multitude of absences from work to the best of its abilities.

Medders’s complaints about the retirement pension the college

provided to Murphy, about the college's failure to re-institute

sick days and vacation days that Medders took during her recovery

period, and about the fact that she chose not to accept the

employer-provided medical insurance and thus was forced to pay outof-pocket for her psychiatric treatment do not convince us

otherwise. 
8 “Substantially limit” means (1) unable to perform a major life activity

that the average person in the general population can perform; or

(2) significantly restricted as to the condition, manner, or duration under which

an individual can perform a particular major life activity as compared to the

condition, manner, or duration under which the average person in the general

population can perform the same major life activity. See 29 C.F.R.

§ 1630.2(j)(1)(i), (ii).

14

D.

Medders challenges the dismissal of her claim under the

Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12112, et

seq. In order to state a prima facie case of employment discrimination under the ADA, a plaintiff must show that (1) she has a

disability; (2) she was a qualified individual with a disability;

and (3) the defendant’s termination of her employment constituted

unlawful discrimination. See Tyndall v. National Educ. Ctrs., Inc.

of California, 31 F.3d 209, 212-13 (4th Cir. 1994). A disability

is a physical or mental impairment that “substantially limits”8 one

or more “major life activities.” See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995). A substantial work

limitation is one that restricts the claimant from performing “a

class of jobs or a broad range of jobs in various classes . . . .

The inability to perform a single, particular job does not

constitute a substantial limitation in the major life activity of

working.” 29 C.F.R. § 1630.2(j)(3)(i). 

Medders claims that the emotional distress stemming from

Murphy’s harassment substantially limits her ability to engage in

the major life activity of “working in a broad class of jobs
9 Medders also claims that her impairment substantially limits her ability

to engage in the major life activity of “social functioning.” We are at a loss

to find in the ADA even a modicum of support for such a major life activity.

10 We may affirm on any legal grounds apparent from the record. See

Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992), cert. denied, 507 U.S.

972 (1993).

15

involving the type of stress found in work environments where there

are predominately middle-aged to older males, particularly when

they are in positions of authority.”9 Because we do not believe

that Medders has established a compensable “disability” under the

ADA, we affirm on different grounds.10 “Jobs involving the stress

found in work environments where there are predominately middleaged to older males” is not a sufficient definition of a class of

jobs or broad range of jobs in which Medders’s disability prevents

her from working.

The proper question under the ADA is whether Medders’s

emotional distress substantially limits her ability to perform her

job as a secretary; finding no such evidence, we affirm. See,

e.g., Bridges v. City of Bossier, 92 F.3d 329, 335-36 (5th Cir.

1995) (discussing more fully the requirements for demonstrating a

substantial limitation on working). The ADA was not intended to

permit plaintiffs to bootstrap specious title VII or intentional

infliction of emotional distress claims into compensable ADA claims

by carefully inventing broad categories of jobs that they claim

they are no longer able to perform. 
16

II.

Medders finally asserts that the district court erred in

failing to grant her motion to compel documents that the college

asserted as privileged. Medders argues on appeal that the

documents should not have been withheld as privileged, but the

district court denied Medders’s motion on alternate groundsSSthat

Medders waited nine months before filing her motion and eventually

did so after the docket control order’s deadline for completion of

discovery. Because Medders offered no justification for the delay,

the court denied her motion. We do not believe that the district

court abused its discretion to handle such pre-trial discovery

matters. See Robinson v. State Farm Fire & Cas. Co., 13 F.3d 160,

164 (5th Cir. 1994).

III.

The college cross-appeals for an award of attorneys’ fees,

contending that Medders’s title VII claims are frivolous, unreasonable, or without foundation. See Christianburg Garment Co. v.

Equal Empl. Opportunity Comm., 434 U.S. 412, 421 (1978). The

district court refused without comment to award fees, and we do not

find any abuse of discretion. See Hadley v. VAM P T S, 44 F.3d

372, 375 (5th Cir. 1995). We similarly reject the college's

suggestion to remand for specific findings with respect to the

attorneys’ fees. See White v. South Park Indep. Sch. Dist., 693
17

F.2d 1163 (5th Cir. 1982).

AFFIRMED.