1

REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-50916.

Marie PFAU, Plaintiff-Appellant,

v.

William REED, In His Official Capacity as Director of the Defense

Contract Audit Agency, Defendant-Appellee.

Oct. 27, 1997.

Appeal from the United States District Court for the Western

District of Texas.

Before KING, DUHÉ and WIENER, Circuit Judges.

KING, Circuit Judge:

Plaintiff-appellant Marie Pfau appeals the district court's

dismissal of her claims of intentional infliction of emotional

distress and grant of summary judgment in favor of

defendant-appellee William Reed in his official capacity as

Director of the Defense Contract Audit Agency on her claims of

sexual harassment. We affirm.

I. BACKGROUND

This case arises out of the alleged sexual harassment of

plaintiff-appellant Marie Pfau while an employee of the Defense

Contract Audit Agency ("DCAA") by Pete Gonzales, Pfau's first-line

supervisor during a portion of her tenure with the DCAA. We are

called upon to evaluate the propriety of the district court's

dismissal of Pfau's claims of intentional infliction of emotional

distress and grant of summary judgment in favor of
 

1The recitation of facts in this subpart is limited to the

factual allegations of Pfau's complaint. Applicable summary

judgment evidence is discussed in Part II.B, infra.

Different versions of Pfau's complaint were pending

before the district court at the time that it dismissed her

claim of intentional infliction of emotional distress and at

the time that it entered summary judgment against her on her

sexual harassment claims. However, the factual allegations in

each version are similar in all material respects. 

2

defendant-appellee William Reed in his official capacity as

director of the DCAA as to her claims of sexual harassment under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to

2000e-17.

A. Facts1

Pfau worked for the DCAA for ten years prior to her

involuntary termination on November 9, 1993. In October of 1992,

she transferred into the DCAA audit team supervised by Gonzales.

Pfau alleges that Gonzales immediately began making "lewd and

suggestive comments" to her and "request[ing] sexually provocative

behavior from" her. Pfau alleges that Gonzales requested that she

take him on a trip with her and made sexual advances that she

rejected. Pfau contends that, upon discovering her vacation plans

for December 1992, Gonzales began asking Pfau to allow him to

accompany her on her trip and to pay his way. Pfau also alleges

that Gonzales asked her for money on several other occasions.

Pfau claims that, during her first month in Gonzales's audit

group, Gonzales called and insisted on visiting Pfau at her

apartment. According to Pfau, he came to her apartment and

insisted that they become involved. Pfau avers that she refused to
3

comply with Gonzales's demands.

Pfau filed charges of sexual harassment and discrimination

against Gonzales, along with retaliation and reprisal charges.

Pfau contends that Gonzales engaged in acts of retaliation for her

filing sexual harassment charges against him, including "sabotaged

work assignments to prevent completion, hindering performance,

withdrawing assignments, invalidating [Pfau's] audit findings,

inappropriately discussing audit findings with contractor

personnel, and subjecting her to harsh, inordinate, and unwarranted

criticism of work assignments." Pfau alleges that Gonzales denied

her the training necessary to successfully advance to higher level

assignments. She also contends that Gonzales began to assign her

to auditing projects that did not comport with her level of

experience, placed her on a performance improvement plan, and

ultimately terminated her for filing sexual harassment charges

against him. Pfau further claims that Gonzales denied her request

for sick leave on April 15, 1993.

Pfau avers that, during the investigation of her sexual

harassment charges against Gonzales, DCAA counselors pressured her

to withdraw the charges that she filed against Gonzales "in return

for a transfer or promises that her impending termination would be

halted." Pfau declined to withdraw her complaint. Pfau also

alleges that DCAA counselors failed to document her complaints and

only acknowledged them after she complained to DCAA management on

numerous occasions. Pfau contends that she was ultimately

compelled to contact the DCAA's central office equal employment
4

opportunity personnel in order to procure proper documentation of

her claims. She claims that the DCAA never conducted an impartial

evaluation of her job performance and charges of sexual harassment

prior to her termination.

B. Procedure

On March 7, 1995, Pfau filed her original complaint, naming as

defendants Reed in his official capacity as Director of the DCAA,

the United States Department of Defense, William J. Perry in his

official capacity as Secretary of the Defense, and Pete Gonzales,

both in his individual and official capacities (collectively

"defendants"). The complaint alleged causes of action for sexual

harassment under Title VII and the Civil Rights Act of 1991 and a

claim of intentional infliction of emotional distress. On June 19,

1995, Pfau filed her first amended complaint.

On July 24, 1995, the defendants filed a motion seeking

dismissal of all claims against all defendants except the Secretary

of Defense and dismissal of Pfau's claim of intentional infliction

of emotional distress. The court initially denied the motion, but

upon a motion for reconsideration, reversed its earlier ruling in

an October 24, 1995 order. It dismissed Pfau's claim of

intentional infliction of emotional distress with prejudice and

held that the Director of the DCAA was the only proper party

defendant with respect to Pfau's Title VII claims.

On October 27, 1995, Pfau filed her second amended complaint,

which added the United States as a party defendant and asserted a

claim of intentional infliction of emotional distress against it
5

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),

2671-2680. Pfau's second amended complaint also retained her cause

of action for intentional infliction of emotional distress against

Gonzales in his individual and official capacities.

The DCAA filed a motion to correct the caption of the case and

to dismiss Pfau's second amended complaint. The court granted the

motion and ordered Pfau to correct her complaint so that it

complied with the court's October 24, 1994 order. Accordingly, on

January 18, 1996, Pfau filed her third amended complaint, which

named only the Director of the DCAA in his official capacity as a

defendant and dropped her claim of intentional infliction of

emotional distress.

On April 19, 1996, the DCAA filed a motion for dismissal of

Pfau's sexual harassment claims or, in the alternative, partial

summary judgment. On August 16, 1996, the district court rendered

summary judgment in favor of the DCAA on Pfau's sexual harassment

claims. Pfau filed a timely notice of appeal.

II. DISCUSSION

Pfau argues that the district court erred in (1) dismissing

her claims of intentional infliction of emotional distress against

the DCAA and Gonzales in his individual capacity and (2) granting

summary judgment in favor of the DCAA on Pfau's sexual harassment

claims. We analyze the propriety of the court's order of dismissal

and grant of summary judgment in turn.

A. Dismissal

1. Standard of Review
6

We review a dismissal on the pleadings de novo, applying the

same standard as the district court. See Truman v. United States,

26 F.3d 592, 593 (5th Cir.1994). "Accordingly, we accept the

well-pleaded allegations in the complaint as true, and we construe

those allegations in the light most favorable to the plaintiff."

Id. at 594. We will therefore uphold the dismissal of Pfau's

intentional infliction of emotional distress claims "only if it

appears that no relief could be granted under any set of facts that

could be proven consistent with the allegations." Rubinstein v.

Collins, 20 F.3d 160, 166 (5th Cir.1994) (internal quotation marks

omitted).

2. Analysis

The district court dismissed Pfau's intentional infliction of

emotional distress claims on the ground that they are preempted by

the Civil Service Reform Act ("CSRA"), Pub.L. No. 95-454, 92 Stat.

1111 (1978) (codified as amended in scattered sections of 5

U.S.C.), and Title VII. We do not address the preemptory effect of

the CSRA because we conclude that Pfau's claims are preempted by

Title VII.

Pfau acknowledges that Title VII provides the "exclusive,

pre-emptive administrative and judicial scheme for the redress of

federal employment discrimination." Brown v. General Servs.

Admin., 425 U.S. 820, 829, 96 S.Ct. 1961, 1966, 48 L.Ed.2d 402

(1976). We have interpreted the Supreme Court's mandate in Brown

to mean that, when a complainant against a federal employer relies

on the same facts to establish a Title VII claim and a non-Title
7

VII claim, the non-Title VII claim is "not sufficiently distinct to

avoid" preemption. Rowe v. Sullivan, 967 F.2d 186, 189 (5th

Cir.1992); see also Jackson v. Widnall, 99 F.3d 710, 716 (5th

Cir.1996).

Pfau advances four arguments as to why her claims of

intentional infliction of emotional distress are nonetheless not

preempted by Title VII. First, Pfau argues that the elements that

a plaintiff must prove in order to establish a claim of quid pro

quo or hostile environment sexual harassment under Title VII are

different from the elements necessary to establish a claim of

intentional infliction of emotional distress. Second, Pfau urges

that the purposes served by Title VII and the cause of action for

intentional infliction of emotional distress are distinct; the

former serves to "strike at the entire spectrum of disparate

treatment of men and women in employment," Meritor Sav. Bank v.

Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986)

(internal quotation marks omitted), whereas the latter serves to

protect individuals from injuries to their psyches. See Twyman v.

Twyman, 855 S.W.2d 619, 621-22 (Tex.1993). Third, Pfau contends

that she has advanced types and instances of conduct in support of

her intentional infliction of emotional distress claims different

from those she has advanced in support of her Title VII claims.

Fourth, Pfau contends that her claim against the DCAA is cognizable

under the FTCA, and therefore cannot be preempted by Title VII.

None of these arguments warrants the conclusion advanced by Pfau

regarding the scope of Title VII preemption.
8

First, the fact that the legal elements a plaintiff must

establish in order to state a claim of sexual harassment are

different from those necessary to state a claim for intentional

infliction of emotional distress does not preclude preemption

because the same facts may establish different legal elements. For

example, a claimant seeking to establish a claim of hostile

environment discrimination must prove, among other things, that the

claimant suffered unwelcome, harassing sexual conduct. See Jones

v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir.1986). A claimant

seeking to establish a claim for intentional infliction of

emotional distress must prove, among other things, that the

claimant was subject to extreme and outrageous conduct. See

Twyman, 855 S.W.2d at 621. While these are distinct legal

elements, the same facts may nonetheless establish both of them in

many circumstances. By establishing the occurrence of sexually

harassing conduct, a plaintiff may at the same time establish the

existence of extreme and outrageous conduct.

Second, the fact that private actions under Title VII and the

common law tort of intentional infliction of emotional distress

serve different purposes cannot dictate our decision as to

preemption. As demonstrated above, sexually harassing conduct may

also be extreme and outrageous conduct, and vice versa. When the

same set of facts supports a Title VII claim and a non-Title VII

claim against a federal employer, Title VII preempts the non-Title

VII claim. See Jackson, 99 F.3d at 716; Rowe, 967 F.2d at 189.

Under the controlling case law in this circuit, the existence of
9

multiple reasons for preventing a particular type of conduct is

therefore irrelevant to the determination of preemption.

Third, Pfau's contention that the factual allegations of her

first amended complaint "cannot reasonably be read as conduct

constituting only employment-related sexual harassment" likewise

does not establish the absence of Title VII preemption. The mere

fact that some of the alleged harassment occurred away from the

office and after business hours does not support Pfau's contention

that the district court "misconstrued which factual allegations

supported which claims." All of the factual allegations in Pfau's

complaint support her claim under Title VII.

In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct.

2399, 91 L.Ed.2d 49 (1986), the Supreme Court concluded that a

plaintiff who suffered sexual harassment both during and after

office hours had stated a claim under Title VII. Id. at 66-67, 106

S.Ct. at 2405-06. The fact that the Court discussed at length the

plaintiff's allegations of sexual harassment outside the office

setting indicates that those allegations formed part of the basis

for the plaintiff's Title VII claim. See id. at 60-61, 106 S.Ct.

at 2402-03. The Court stated that

"[s]exual harassment which creates a hostile or offensive

environment for members of one sex is every bit the arbitrary

barrier to sexual equality at the workplace that racial

harassment is to racial equality. Surely, a requirement that

a man or woman run a gauntlet of sexual abuse in return for

the privilege of being allowed to work and make a living can

be as demeaning and disconcerting as the harshest of racial

epithets."

Id. at 67, 106 S.Ct. at 2405 (quoting Henson v. Dundee, 682 F.2d

897, 902 (11th Cir.1982)). Clearly, the "gauntlet of sexual abuse"
 

2Pfau urges us to adopt the position on Title VII preemption

taken by the Ninth Circuit in Brock v. United States, 64 F.3d 1421

(9th Cir.1995). In that case, the plaintiff, a former employee of

the Forest Service, brought suit under the FTCA against the United

States for negligent supervision based on her being raped and

otherwise sexually harassed by her supervisor. See id. at 1422.

The court concluded that, while the plaintiff's rape clearly

constituted a form of sexual discrimination, it was also "more than

sexual discrimination," and therefore justified the plaintiff's

assertion of non-Title VII claims against the government. Id. at

1423.

We decline to adopt the position taken by the Ninth

Circuit in Brock because it is inconsistent with the

jurisprudence of this circuit. So long as the factual

predicate of a claimant's non-Title VII claims is the same as

the factual predicate for the claimant's Title VII claims

against a federal agency, we are bound to conclude that Title

VII preempts the non-Title VII claims. See Jackson, 99 F.3d

at 716; Rowe, 967 F.2d at 189. 

10

that an employee is required to run need not be confined to working

hours in order to affect a " "term, condition, or privilege' of

employment within the meaning of Title VII." Id. Thus, we reject

Pfau's contention that her allegations that Gonzales called her at

home and demanded that she take him on vacation with her are not

allegations that support her Title VII claims. Pfau cannot avoid

Title VII preemption by picking and choosing which of her factual

allegations she wishes to allocate to her Title VII claims and to

her independent torts claims.2

Fourth, Pfau's contention that her intentional infliction of

emotional distress claim against the DCAA is not preempted by Title

VII because it is otherwise cognizable under the FTCA lacks merit.

Assuming that the claim is not barred by the FTCA, this fact

plainly does not preclude Title VII preemption. In Brown, the

Supreme Court observed that "a precisely drawn, detailed statute
11

pre-empts more general remedies." Brown, 425 U.S. at 834, 96 S.Ct.

at 1968. Because Congress has manifested a clear intent that Title

VII serve as the "exclusive, pre-emptive administrative and

judicial scheme for the redress of federal employment

discrimination," id. at 829, 96 S.Ct. at 1966, Pfau cannot seek

relief for such discrimination through the more general remedy

afforded by the FTCA.

Pfau also challenges the district court's dismissal of her

intentional infliction of emotional distress claim against Gonzales

in his individual capacity. However, the district court's

dismissal of Pfau's claim against Gonzales in his individual

capacity was proper for the same reasons that the court's dismissal

of Pfau's claim against the DCAA was proper. Title VII's

preemptive effect as to claims against individual supervisors is

coextensive with its preemptive effect as to claims against federal

agencies. See Newbold v. United States Postal Serv., 614 F.2d 46,

47 (5th Cir.1980); Cazalas v. United States Dep't of Justice, 569

F.Supp. 213, 225-27 (E.D.La.1983), aff'd, 731 F.2d 280 (5th

Cir.1984).

B. Summary Judgment

1. Standard of Review

"We review a grant of summary judgment de novo, applying the

same criteria used by the district court in the first instance."

Texas Manufactured Housing Ass'n v. City of Nederland, 101 F.3d

1095, 1099 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.

2497, 138 L.Ed.2d 1003 (1997). Summary judgment is proper "if the
12

pleadings, depositions, answers to interrogatories, and admissions

on file, 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 judgment as a matter of law." FED.R.CIV.P. 56(c);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct.

2548, 2554-55, 91 L.Ed.2d 265 (1986).

2. Analysis

The district court entered summary judgment in favor of the

DCAA on Pfau's claims of quid pro quo and hostile environment

sexual harassment. The court observed that Pfau's claim of quid

pro quo sexual harassment required proof of the following elements:

(1) "that she is a member of a protected group;"

(2) "that she was subject to unwelcome sexual harassment;"

(3) "that the complained-of harassment was based upon sex;"

(4) "that her reaction to the harassment affected tangible

aspects of the terms and conditions of her employment, with

her acceptance 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

(5) "respondeat superior."

Ellert v. University of Texas, 52 F.3d 543, 545 (5th Cir.1995).

The court further observed that Pfau's claim of hostile environment

sexual harassment required proof of the following elements:

"(1) [t]he employee belongs to a protected group ...;

(2) [t]he employee was subject to unwelcome sexual harassment,

i.e. sexual advances, requests for sexual favors, and other

verbal and physical conduct of a sexual nature that is

unwelcome in the sense that it is unsolicited or unincited and

is undesirable or offensive to the employee;

(3) [t]he harassment complained of was based upon sex ...;
 

3Use of the term "respondeat superior " as an element in

claims of quid pro quo and hostile environment sexual harassment

may be a bit misleading to the extent that the term traditionally

implies strict employer liability. See BARBARA LINDEMANN & PAUL

GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 760-61 n. 85 (3d ed.1996). In the

context of quid pro quo and hostile environment sexual harassment

prima facie claims, the term means more generally a legal basis for

employer responsibility. See id. 

13

(4) [t]he harassment complained of affected a "term, condition

or privilege of employment,' i.e., the sexual harassment must

be sufficiently severe as to alter the conditions of

employment and create an abusive working environment;

(5) [r]espondeat superior, i.e., that the employer knew or

should have known of the harassment in question and failed to

take prompt remedial action."

Waltman v. International Paper Co., 875 F.2d 468, 477 (5th

Cir.1989) (brackets and ellipses in original) (quoting Jones v.

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

The district court concluded that no genuine issue of

material fact existed as to the respondeat superior element of

either Pfau's quid pro quo or hostile environment sexual harassment

claims.3

 Pfau challenges the district court's entry of summary

judgment against her on her sexual harassment claims on the ground

that a genuine issue of material fact exists as to the respondeat

superior elements of both her quid pro quo and hostile environment

sexual harassment claims. Pfau advances two theories in support of

this proposition. First, she argues that a genuine issue of

material fact exists as to whether Gonzales was her "employer"

within the meaning of Title VII's definition of that term. She

contends that, if Gonzales was her employer, then the DCAA is

strictly liable under Title VII for Gonzales's harassment. Second,
 

4In contending that genuine issues of material fact precluded

the district court's entry of summary judgment against her, Pfau

relies to a large extent on excerpts from her second amended

affidavit, which she submitted to the district court along with her

motion for reconsideration of the court's order granting summary

judgment. The DCAA contends that, because this affidavit was not

before the district court when it rendered summary judgment for the

DCAA, we cannot consider it on appeal.

The DCAA correctly observes that "materials not presented

to the district court for consideration of a motion for

summary judgment are never properly before the reviewing court

on appeal from the judgment granting the motion." Munoz v.

International Alliance of Theatrical Stage Employees, 563 F.2d

205, 209 (5th Cir.1977). However, "[i]f [a] party seeking

reconsideration submits additional materials, the trial court

may consider those materials in its discretion. If the lower

court does consider the materials and still grants summary

judgment to the moving party, the appellate court may review

all of the materials de novo." Fields v. City of S. Houston,

922 F.2d 1183, 1188 (5th Cir.1991) (citations omitted).

The district court's order denying Pfau's motion for

reconsideration states that "[t]he Court has carefully

reviewed the foregoing [motion and affidavits] and finds that

these additional affidavits do not in any way merit a reversal

of the Court's grant of Defendant's Motion for Partial Summary

Judgment." Because the district court obviously considered

the additional affidavits submitted by Pfau and still

concluded that summary judgment was properly granted, we may

review these affidavits as well. 

14

she argues that, even if Gonzales is not her employer or an agent

thereof, a genuine issue of material fact exists as to whether the

DCAA knew or should have known of his harassment of Pfau and other

DCAA employees and failed to take prompt remedial action. We find

each of these arguments to be without merit.4

a. Gonzales as "Employer"

Title VII prohibits employers from, among other things,

"discriminat[ing] against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or
15

national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII defines

"employer" as "a person engaged in an industry affecting commerce

who has fifteen or more employees for each working day in each of

twenty or more calendar weeks in the current or preceding calendar

year, and any agent of such a person ...." 42 U.S.C. § 2000e(b)

(emphasis added). While the plain language of the above provisions

facially appears to provide a basis for rendering agents of an

employer personally liable for their discriminatory acts, this

circuit has interpreted Title VII's definition of employer as

merely importing common law agency principles of respondeat

superior liability. See Grant v. Lone Star Co., 21 F.3d 649, 652

(5th Cir.1994) ("[T]he purpose of the "agent' provision in §

2000e(b) was to incorporate respondeat superior liability into

title VII."). Thus, the actions of one who constitutes an agent of

an employer may be considered the actions of the employer for

purposes of imposing Title VII liability on the employer.

Pfau contends that Gonzales was the DCAA's agent within the

meaning of Title VII, and that his knowledge of his own sexually

harassing conduct is imputed to the DCAA, rendering it strictly

liable under Title VII. We reject this contention.

In Meritor, the Supreme Court rejected the notion that

supervisory personnel are agents per se within the meaning of Title

VII's definition of employer, and thus rejected the notion that

employers are strictly liable for the sexually harassing conduct of

their supervisors in all circumstances. See Meritor, 477 U.S. at

72, 106 S.Ct. at 2407-08. The Court "decline[d] ... to issue a
 

5To date, cases in this circuit that have broached the issue

of whether a supervisor is an agent of an employer for purposes of

Title VII have not expressly differentiated between the existence

of an agency relationship for purposes of a quid pro quo sexual

harassment claim and the existence of such a relationship for

purposes of a hostile environment sexual harassment claim. To the

extent that a determination that a supervisory employee is the

employer's agent provides a basis for holding the employer strictly

liable for the supervisor's harassing conduct, it is possible that

a supervisor may be the employer's agent for purposes of

supervisory conduct that constitutes quid pro quo sexual

harassment, but not for purposes of supervisory conduct that

constitutes hostile environment sexual harassment. See LINDEMANN &

GROSSMAN, supra, at 775, 812 (observing that "[m]ost courts have

found employers automatically liable for the actions of their

supervisory personnel in quid pro quo cases," but that "[h]ostile

environment sexual harassment normally does not trigger respondeat

superior liability because sexual harassment rarely, if ever, is

among the official duties of a supervisor"). In Henson v. City of

Dundee, 682 F.2d 897 (11th Cir.1982), the case that set forth the

frameworks for prima facie claims of quid pro quo and hostile

environment sexual harassment adopted in this circuit, see Jones,

793 F.2d at 719-20, 721-22, the Eleventh Circuit explained the

distinction regarding the propriety of strict employer liability

for supervisory conduct constituting quid pro quo and hostile

environment sexual harassment:

In the classic quid pro quo case an employer is strictly

liable for the conduct of its supervisors, while in the

work environment case the plaintiff must prove that

higher management knew or should have known of the sexual

16

definitive rule on employer liability" for the actions of

supervisory personnel, but indicated that common law agency

principles may be useful in determining the situations in which a

supervisor constitutes an employer's agent for Title VII purposes.

See id. at 72, 106 S.Ct. at 2407-08.

Pfau contends that Meritor, along with cases in this circuit

and others interpreting it, establishes that Gonzales was the

DCAA's agent within the meaning of Title VII's definition of

employer, and thus that his sexually harassing conduct is directly

attributable to the DCAA.5 We disagree. The summary judgment
harassment before the employer may be held liable. The rationale

underlying this difference in the treatment of the two cases is

easily stated. The environment in which an employee works can be

rendered offensive in an equal degree by the acts of supervisors,

or even strangers to the workplace. The capacity of any person to

create a hostile or offensive environment is not necessarily

enhanced or diminished by any degree of authority which the

employer confers upon that individual. When a supervisor

gratuitously insults an employee, he generally does so for his

reasons and by his own means. He thus acts outside the actual or

apparent scope of the authority he possesses as a supervisor. His

conduct cannot automatically be imputed to the employer any more so

than can the conduct of an ordinary employee.

The typical case of quid pro quo sexual harassment

is fundamentally different. In such a case, the

supervisor relies upon his apparent or actual authority

to extort sexual consideration from an employee. Therein

lies the quid pro quo. In that case the supervisor uses

the means furnished to him by the employer to accomplish

the prohibited purpose. He acts within the scope of his

actual or apparent authority to hire, fire, discipline or

promote. Because the supervisor is acting within at

least the apparent scope of the authority entrusted to

him by the employer when he makes employment decisions,

his conduct can fairly be imputed to the source of his

authority.

Id. at 910 (citations, internal quotation marks, and footnotes

omitted). However, Pfau has relied both on appeal and at the

district court level almost exclusively on cases addressing

the issue of agency, and thus the applicability of strict

employer liability, in the context of hostile environment

claims and does not contend that Gonzales may be an agent of

the DCAA for purposes of her quid pro quo claim but not for

purposes of her hostile environment claim. We decline to

raise this issue on our own motion, and decide the case based

on the arguments advanced by the parties. See In re Quenzer,

19 F.3d 163, 165 (5th Cir.1993) ("Typically, we will not

consider on appeal matters not presented to the trial

court."). Because we conclude that Gonzales was not the

DCAA's agent with respect to Pfau's hostile environment claim,

we also conclude that he was not an agent for purposes of her

quid pro quo claim. 

17

evidence indicates that, as a first-line supervisor, Gonzales

lacked the authority to hire and fire agency employees and could

only recommend that employees receive awards or be subject to
18

disciplinary action. Gonzales could also issue assignments to

auditors and determine the number of hours allocated to each

assignment. The case law in this circuit indicates that this

degree of authority is, as a matter of law, insufficient to

establish that a supervisor is an agent within the meaning of Title

VII.

In Garcia v. Elf Atochem N.A., 28 F.3d 446 (5th Cir.1994),

this court concluded that immediate supervisors may be agents of

employers within the meaning of Title VII's definition of employer

when they are " "delegated the employer's traditional rights, such

as hiring and firing.' " Id. at 451 (quoting Quijano v. University

Fed. Credit Union, 617 F.2d 129, 131 (5th Cir.1980)). While the

court acknowledged that the phrase "any agent" in Title VII's

definition of employer was entitled to a liberal construction, it

declined to extend the definition "to include all supervisory

personnel, not just those with the ability to hire and fire."

Garcia, 28 F.3d at 451.

We recognize that some authority exists for the proposition

that a supervisor need not have the authority to hire and fire in

order to be considered an agent of the employer for Title VII

purposes. See Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393,

397 (5th Cir.1996) ("[T]he Fourth Circuit has explained, "[The

agent] need not have ultimate authority to hire and fire to qualify

as an employer, as long as he or she has significant input into

such personnel decisions.' " (quoting Paroline v. Unisys Corp., 879

F.2d 100, 104 (4th Cir.1989), vacated in part on other grounds, 900
 

6Pfau makes much of the fact that Gonzales stated in a

memorandum to the DCAA regional director that he "was instrumental

and mainly responsible for the proper procedural handling of the

termination of Ms. Pfau." However, the fact that Gonzales managed

the procedural aspects of Pfau's termination in no way indicates

that he had significant input in the decision to fire her. 

 

7In Hamilton v. Rodgers, 791 F.2d 439 (5th Cir.1986), a case

not relied upon by Pfau, a panel of this court took an expansive

view of the "any agent" provision of Title VII's definition of

employer. In that case, the court concluded that fire department

supervisors whose authority was limited to tasks such as assigning

cars and staffing shifts were employers within the meaning of 42

U.S.C. § 2000e(b). See id. at 442. The court reasoned that " "[a]

person is an agent under § 2000e(b) if he participated in the

decision-making process that forms the basis of the

discrimination.' " Id. at 443 (quoting Jones v. Metropolitan

Denver Sewage Disposal Dist., 537 F.Supp. 966, 970 (D.Colo.1982)).

The court premised its expansive reading of § 2000e(b) on

the notion that a narrower reading "would encourage

supervisory personnel to believe that they may violate Title

VII with impunity." Id. This rationale for the court's

interpretation of § 2000e(b) presupposes that individual

employees such as the supervisors at issue could be held

liable in their individual capacities under Title VII. See

Harvey v. Blake, 913 F.2d 226, 228 n. 2 (5th Cir.1990). Prior

to Hamilton, a panel of this circuit held that public officials

could not be held liable in their individual capacities under Title

19

F.2d 27 (4th Cir.1990) (en banc))), cert. denied, --- U.S. ----,

117 S.Ct. 2434, 138 L.Ed.2d 195 (1997). However, even courts that

take this more liberal approach acknowledge that the supervisor

must exercise "significant control over the plaintiff's hiring,

firing or conditions of employment." Paroline, 879 F.2d at 104.

The summary judgment evidence in this case indicates that the

minimal authority wielded by Gonzales falls short of such

significant control.6 We therefore conclude that the district

court did not err in ruling as a matter of law that Gonzales was

not Pfau's employer for purposes of determining the DCAA's

liability under Title VII.7
VII. See Clanton v. Orleans Parish Sch. Bd., 649 F.2d 1084, 1099-

100 (5th Cir. Unit A July 1981). Thus, to the extent that Hamilton

's broad reading of § 2000e(b) is premised upon a legal conclusion

that would effectively overrule a prior panel opinion, we do not

feel constrained to apply it in this case. See Ryals v. Estelle,

661 F.2d 904, 906 (5th Cir. Nov.1981) ("It has long been a rule of

this court that no panel of this circuit can overrule a decision

previously made by another."). 

20

b. The DCAA's Knowledge and Remedial Action

Pfau argues in the alternative that a genuine issue of

material fact exists as to whether the DCAA knew or should have

known of Gonzales's harassment of Pfau and other DCAA employees and

failed to take prompt remedial action. She advances two theories

in support of this proposition: (1) the DCAA had actual knowledge

of Gonzales's harassment of her and failed to take prompt remedial

action, and (2) sexual harassment by Gonzales and other officials

was so pervasive, open, and obvious that the DCAA had constructive

notice of Gonzales's harassment of her and failed to take prompt

remedial action. The summary judgment evidence that Pfau has

submitted fails to create a genuine issue of material fact as to

either of these theories.

Pfau contends that the DCAA had actual notice that Gonzales

had harassed her and other DCAA employees prior to December 9,

1992, the date on which she first complained to upper management

that Gonzales had sexually harassed her. She contends that, on

April 16, 1992, she wrote a letter to Martin Munoz, the former

Central Region EEO officer for the DCAA's office in Irving, Texas,

complaining of sexual harassment. However, the letter contains no

reference to sexual harassment by Gonzales, and only complains of
21

conduct of female co-workers.

Pfau also claims that a September 12, 1992 memorandum that she

sent to Dale Collins, the DCAA's Director of Personnel, establishes

that the DCAA had knowledge of her harassment by Gonzales prior to

December of 1992. The memorandum states generally that "[t]he

responsibility of management to prevent sexual harassment is not

being performed." However, it contains no allegations of sexual

harassment on the part of Gonzales, and actually urges that

Gonzales "should be given fair treatment." The memorandum

therefore provided the DCAA with no notice that Gonzales had

sexually harassed Pfau.

Finally, Pfau contends that Gonzales harassed two other DCAA

employees—Tonya Scherchyl Martinez and Carolyn Pease—in 1990 and

1991 and that she reported these instances of supposed harassment

to management. However, Pfau has offered no deposition testimony

or affidavits from these other employees establishing that they

experienced sexual harassment. Rather, she simply states in her

own affidavit that these other employees told her that Gonzales had

harassed them. This portion of Pfau's affidavit is incompetent

summary judgment evidence because it consists of inadmissible

hearsay. See Barhan v. Ry-Ron Inc., 121 F.3d 198, 202 (5th

Cir.1997).

The competent summary judgment evidence that speaks directly

to the DCAA's knowledge of Gonzales's alleged sexual harassment is

limited to the affidavits of Michael Gonzales, the DCAA's Central

Region EEO officer in Irving, Texas; James C. Bourne, Regional
22

Audit Manager of the DCAA's Central Division; Harold J. Lamb, the

former Branch Manager of the DCAA's Austin, Texas office; and

Dennis Low, a supervisory auditor at the DCAA's Austin office. In

each affidavit, the affiant states that he had no knowledge of any

allegations of sexual harassment by Gonzales prior to Pfau's

complaint in December 1992. Thus, no genuine issue of material

fact exists as to whether the DCAA had actual knowledge of sexually

harassing conduct on the part of Gonzales prior to December 9,

1992.

Likewise, no genuine issue of material fact exists as to

whether DCAA management should have known of such conduct prior to

December 1992 based on the pervasiveness of sexual harassment

within the agency. Pfau has not produced summary judgment evidence

indicating that Gonzales's alleged sexual harassment was so

pervasive that the DCAA should have known about it as it was

happening. Pfau's affidavit indicates that much of Gonzales's

alleged sexually harassing behavior took place outside the office

(e.g., telephone calls at home and visits to her apartment). Pfau

alleges that, on "many" occasions during working hours, Gonzales

would stand very near her and that he "continuously pressured" her

during working hours to take him on vacation. Pfau also states in

her affidavit that on one occasion Gonzales called her into his

office and requested that they have lunch at her apartment, a

comment that she interpreted to be a request for sexual relations.

Pfau also mentions a few other specific instances of sexually

harassing conduct in Gonzales's office. She alleges that, on one
 

8We question whether the above events described by Kirschbaum

in any sense constitute hostile environment sexual harassment.

Gonzales's requests for telephone calls and expectation that

Kirschbaum pick up an expensive dinner tab, while perhaps

inconsiderate, are not the sort of "severe or pervasive" conduct

that would " "alter the conditions of [Kirschbaum's] employment and

create an abusive working environment.' " Meritor, 477 U.S. at 67,

106 S.Ct. at 2405 (internal quotation marks omitted). 

23

occasion, he told her that her blouse was unbuttoned when it was

not and that, on another, he told her to turn around so that he

could see her backside. She also states that, on another occasion,

Gonzales requested that Pfau stand very near him in his office and

became angry when she would not move closer.

Pfau has also offered the affidavit of Mary Lou Kirschbaum, a

former supervisory auditor in the DCAA's Austin office. In her

affidavit, Kirschbaum states that on one occasion Gonzales sent a

message to her during a business meeting requesting that she call

him at his hotel and that on another occasion he requested that she

call him at the home of the DCAA's Central Regional Director. She

also claims that she accompanied Gonzales to dinner at an expensive

restaurant and that he expected her to pay the bill. She indicates

that Gonzales "brought up this incident in front of Dennis Low, who

was then the special assistant to the Branch Manager of the DCAA

Austin office," and that she was embarrassed by this.8

Kirschbaum also states that she heard Gonzales make "sexual

jokes, comments, and innuendos during work hours" and that he would

make "unwelcome sexual contact" with her and other female

employees. Kirschbaum provides no description of the "sexual

contact" to which she refers, nor any basis for her conclusion that
 

9In many cases the affidavits of Pfau and Kirschbaum simply

state that the specific events that they describe occurred "before

December 9, 1992" or "before Marie Pfau filed her formal sexual

harassment complaint against Pete Gonzales" and provide no

indication of how far in advance of Pfau's formal complaint the

alleged conduct occurred. Thus, even if we were to conclude that

a reasonable jury could find that the pervasiveness of Gonzales's

alleged harassment provided the DCAA with constructive notice of

it, Pfau has failed to create a fact issue as to the timeliness of

the DCAA's response because she has provided no indication of how

much time elapsed between the point of constructive notice and the

DCAA's response. 

 

10Pfau also argues that numerous other male supervisors at the

DCAA also engaged in sexual harassment. She contends that the

pervasiveness of sexual harassment by these other employees

provided the DCAA with constructive notice that sexual harassment

was occurring within the organization. However, Pfau's complaint

is limited to allegations that Gonzales sexually harassed her.

Accordingly, Pfau's complaint seeks recovery only for Gonzales's

hostile environment and quid pro quo sexual harassment. We fail to

see how harassment by other supervisors, regardless of how

pervasive, could have provided the DCAA with constructive notice

that Gonzales had been engaged in harassment.

Authority exists for the proposition that, when

harassment is sufficiently pervasive, an employer may be

24

the purported contact with other employees was unwelcome or sexual.

The above allegations of specific instances of Gonzales's

sexually harassing conduct, while perhaps establishing a fact issue

as to whether he created a hostile work environment for Pfau, do

not create a genuine issue of material fact as to whether

Gonzales's harassment was so open and obvious that the DCAA should

be charged with constructive notice of it.9 This conclusion is

bolstered by the fact that much of the alleged conduct took place

outside the working environment and the affidavits offered by Pfau

contain little indication that any substantial portion of the

alleged sexual harassment took place in the presence of other

employees.10
liable on the basis of constructive knowledge. See, e.g., Waltman

v. International Paper Co., 875 F.2d 468, 478 (5th Cir.1989).

However, in the cases that have held employers liable on the basis

that the pervasiveness of sexual harassment implies constructive

knowledge, the pervasive conduct is the conduct of which the

plaintiff complains. See id. (concluding that sexually explicit

graffiti and multiple instances of unwanted physical contact that

formed the basis of plaintiff's claim of hostile environment sexual

harassment were also sufficiently pervasive to create a fact issue

as to whether employer had constructive notice of harassment). In

this case, Pfau has sought recovery only for the hostile

environment created by Gonzales and Gonzales's quid pro quo sexual

harassment. She does not seek recovery for hostile environment or

quid pro quo sexual harassment by other supervisors. Accordingly,

the pervasiveness of harassment by other supervisors cannot

logically form a basis for holding the DCAA liable. 

25

We find further support for our conclusion that no genuine

issue of material fact exists as to whether the DCAA had

constructive notice of Gonzales's harassment of Pfau in the fact

that the summary judgment evidence indicates that the DCAA had a

structured, accessible grievance procedure that Pfau could (and

ultimately did) use to provide the DCAA with actual notice of her

harassment. In Meritor, the Supreme Court rejected the defendant

employer's argument "that the mere existence of a grievance

procedure and a policy against discrimination, coupled with the

[plaintiff's] failure to invoke the procedure, must insulate [the

defendant] from liability." Meritor, 477 U.S. at 72, 106 S.Ct. at

2408. However, the court went on to point out that the defendant's

nondiscrimination policy and grievance procedure suffered from two

distinct infirmities: (1) the nondiscrimination policy "did not

address sexual harassment in particular, and thus did not alert

employees of their employer's interest in correcting that form of

discrimination;" and (2) the grievance procedure would have
26

required the plaintiff to report her harassment to her

supervisor—the very person who had been sexually harassing her.

See id. at 72-73, 106 S.Ct. at 2408-09. The court observed that,

in the absence of these infirmities, the defendant's argument that

the presence of these policies should insulate it from a finding of

constructive notice "might be substantially stronger." See id. at

73, 106 S.Ct. at 2408.

The summary judgment evidence in this case indicates that (1)

the DCAA had a specific policy against sexual harassment and

provided sexual harassment training to employees and (2) the DCAA's

grievance procedure did not require Pfau to report her harassment

to Gonzales. As such, the DCAA's "procedures were better

calculated to encourage victims of harassment to come forward" than

the procedures at issue in Meritor. Id. We express no opinion as

to whether the DCAA's grievance procedure and sexual harassment

policy may of themselves bar a finding of constructive notice.

However, the presence of these procedures, coupled with the sparse

summary judgment evidence indicating that Gonzales's harassment of

DCAA employees was open and pervasive, warrant our conclusion that

no genuine issue of material fact exists as to whether the DCAA had

constructive notice that Gonzales was harassing Pfau prior to her

complaint in December 1992.

Pfau likewise has failed to raise a genuine issue of material

fact as to the adequacy of the DCAA's remedial response once it had

notice of Gonzales's alleged sexual harassment. In her affidavit,

Pfau conclusorily states that the EEO counselors who investigated
27

her formal complaint attempted to "whitewash" her complaint and

that she "believed that the investigators and counselors ... had

little interest in getting at the truth." Such conclusory and

speculative assertions are not competent summary judgment evidence.

See Lechuga v. Southern Pac. Transp. Co., 949 F.2d 790, 798 (5th

Cir.1992) ("Conclusory statements in an affidavit do not provide

facts that will counter summary judgment evidence, and testimony

based on conjecture alone is insufficient to raise an issue to

defeat summary judgment." (footnote omitted)).

The summary judgment evidence indicates that upon receiving

Pfau's formal complaint, the DCAA's EEO department began a prompt

investigation. Paula A. McFarland, an EEO counselor for the DCAA,

met with Gonzales. Her report on Pfau's complaint states that she

spoke with Gonzales about sexual harassment training and complaint

procedure and instructed him not to call Pfau at home. Harold

Lamb, the DCAA Austin Branch Manager, states in his affidavit that

he met with Gonzales and instructed him not to call DCAA employees

after hours. He also states that he "reminded [Gonzales] about the

DCAA policy prohibiting sexual harassment and admonished him to not

engage in any activity which might in any way be considered

unwelcome sexual harassment." This remedial response passes muster

under Title VII. See Waymire v. Harris County, 86 F.3d 424, 429

(5th Cir.1996) (holding reprimand of employee who had engaged in

sexual harassment sufficient as a matter of law where employee had

no prior documented offenses); Landgraf v. USI Film Products, 968

F.2d 427, 430 (5th Cir.1992) ("Title VII does not require that an
 

11Pfau contends that Gonzales made one more harassing statement

to her in July of 1993 when she took a business trip to Corpus

Christi. In deposition, she made the following statement:

He told me that if I ever needed him I could call him and

where was the location of my hotel room. And I thought

that a pretty dangerous bunch of words for this guy to

use.

However, Pfau admitted in deposition that she believed that

this statement merely "bordered on harassment." It certainly

does not create a fact issue as to the effectiveness of the

DCAA's remedial response. 

28

employer use the most serious sanction available to punish an

offender, particularly where, as here, this was the first

documented offense by an individual employee."), aff'd, 511 U.S.

244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

Moreover, Pfau essentially admitted in deposition that

Gonzales engaged in no more sexually harassing conduct after she

made her formal complaint.11 McFarland's investigative report

states that "Ms. Pfau stated that the comments and telephone calls

had stopped and that I should just write in the EEO's counselor's

report that the problem was resolved." The summary judgment

evidence thus indicates that no genuine issue of material fact

exists as to whether the DCAA's remedial efforts were sufficient to

avoid liability under Title VII.

Because no genuine issue of material fact exists with respect

to either of the theories advanced by Pfau in support of imposing

liability on the DCAA for Gonzales's alleged quid pro quo and

hostile environment sexual harassment, the district court properly

entered summary judgment in favor of the DCAA on Pfau's sexual

harassment claims.
29

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.