1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No. 01-30673

Summary Calendar

______________________________

GEORGIA M. WOODS,

Plaintiff - Appellant

VERSUS

DELTA BEVERAGE GROUP, INC., doing

business as Delta Beverage Company,

Defendant - Appellee

__________________________________________________

Appeal from the United States District Court

For the Western District of Louisiana

___________________________________________________ December 11, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:

The Plaintiff, Georgia M. Woods (“Woods”), asserts claims for

sexual harassment in violation of Title VII and Louisiana law and

constructive discharge. The issue on appeal is whether Woods’

fail ure to notify the Defendant Delta Beverage Company (“Delta

Beverage”) about ongoing harassment after the July 7, 1998 meeting

prevents her from surviving summary judgment on her hostile working1 W oods clai ms that the phone calls were from Eddy because a

Delta Beverage phone number showed up on her caller ID.

2 environment claim. We conclude that the hostile working

environment claim does not survive summary judgment because Woods

did not follow the established company procedure for remedying her

complaints.

I. FACTS AND PROCEDURAL HISTORY

Woods began working as a part-time telephone sales clerk for

Delta Beverage on Jun e 18, 1998. She started as a temporary

employee working throug h a temporary employment agency. Delta

Beverage hired her as a Delta Beverage employee a few weeks later.

Woods quit working for Delta Beverage on July 22, 1998.

Woods alleged that she was sexually harassed by a co-employee,

Gary Eddy, on a daily basis during the course of her employment at

Delta Beverage. She contends that, on a daily basis, Eddy rubbed

her shoulders and neck. She also contends that Eddy touched her

hair on one occasion, held her hand on one occasio n, kissed her

hand on one occasion, and touched her blouse on one occasion.

Woods also contends that Eddy telephoned her home six to eight

times. However, she did not answer any of these calls. 1

On July 6, Woods inform ed another employee, Nicy Gordon

(“Gordon”), that she was being harassed by Eddy and could not put

up with Eddy putting his hands on her anymore. At first, Gordon

informed her that she did not know what to do because her3

superviso r, Greg Barrett, was on vacation. However, later that

day, Gordon asked Woods t o come into work the next day for a

meeting about the subject.

On July 7, Eric Sherer and Bobby Smith, Delta Beverage

district managers, investigated Woods’ complaints concerning Eddy’s

behavior. Scherer and Smith met separately with Woods and Eddy.

They informed Eddy that his conduct was inappropriate and that his

actions would be noted in his employm ent file. They also warned

him that further similar behavior would lead to disciplinary

action, including termination. They told Woods that she should

notify them immediately if Eddy eng aged in further inappropriate

behavior.

On July 8, Woods worked with Eddy all day long. At the end of

the day, one of the district managers called Woods. He asked her if

she was comfortable with the way the situation had been handled,

and, if she had experienced further problems with Eddy. She

informed him that she had not h ad any problems with Eddy on that

day.

Woods worked at Delta Beverage for two more weeks. During

this time period, Woods contends that Eddy continued his unwelcome

touching. However, Woods did not report the touching to Smith,

Scherer, or anyone else at Delta Beverage. On July 23, Woods did

not report to work. Gordon called to inquire why. Woods informed

Gordon that she was not feeling well.4

Woods missed several more days of work. Delta Beverage

attempted to contact her several times to find out why. She never

returned their calls, and never showed up for work again.

On June 19, 2000, Woods filed suit against Delta Beverage in

a Western District of Loui siana federal court. The complaint

asserted hostile work environment and constructive discharge claims

based upon Eddy ’s conduct. On May 31, 2001, the district court

granted Delta Beverage’s motion for summary judgment on all claims.

The district co urt concurrently entered final judgment for Delta

Beverage. Woods subsequently filed a timely notice of appeal.

II. JURISDICTION

Woods appeals from the distri ct court’s final judgment

dismissing with prejudice all of her claims. Thus, we have

jurisdiction under 28 U.S.C. § 1291.

III. STANDARD OF REVIEW

We review a district court’ s decision to grant summary

judgment de novo

, applying the s ame standards as the district

court. W alker v. Thompson

, 214 F.3d 615, 62 4 (5th Cir. 2000).

Summary judgment is proper when there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law. See Fed. R. Civ. P. 56(c). Evidence is viewed in

the light most favorable to the nonmoving party and all reasonable

inferences are drawn in its favor. R eeves v. Sanderson Plumbing

Products, Inc. , 530 U.S. 133, 150 (2000).2 I n Watts v. Kroger Co.

, 170 F.3d 505, 509 (5th Cir. 1999),

we drew a distinction between cases in which an employee asserts a

Title VII sexual harassment claim alleging that a supervisor with

immediate (or successively higher) authority harassed her and cases

in which the harasser is a co-worker. In the former situation, the

emp loyee need only satisfy the first four elements of the

aforementioned test. Id. I n the latter situation, we made clear

that the employee must satisfy all five elements. I d. at 509, n.3.

Here, it is undisputed that Eddy was a route settlement clerk with

no supervisory authority over Woods. Indeed, Appellant’s brief

repeatedly refers to Eddy as merely a co-worker. Therefore, Woods

must satisfy all five elements.

5 IV. DISCUSSION

A. Hostile Working Environment

A plaintiff may establish a Title VII violation by proving

that sex discrimination has created a hostile or abusive working

environment. M

eritor Savings Bank, FSB v. Vinson

, 477 U.S. 57, 66

(1986). In order to establish a hostile working environment claim,

a plaintiff must prove five elements: (1) the employee belonged to

a protected class; (2) the employee was subject to unwelcome sexual

harassment; (3) the harassment was based on sex; (4) the harassment

affected a “term, condition, or privilege” of employment; and (5)

the employer knew or should have known of the harassment and failed

to take prompt remedial action. 2 Shepherd v. Comptroller of Public

Accounts of the State of Texas

, 168 F.3d 871, 873 (5th Cir. 1999).

In the instant case, Woods has satisfied the first three

elements. Therefore, only two issues need be addressed: (1)

whether Woods has raised a genuine issue of material fact that the

alleged harassment was severe or pervasive enough to alter a “term,6

condition, or privilege” of her employment; and (2) whether Woods

has raised a genuine issue of material fact that Delta Beverage

failed to take prompt remedial action.

1. Did Eddy’s harassment affect a “term, condition, or privilege”

of Woods’ employment ?

In order to be actionable, Eddy’s harassment must have created

an envir onment that a reasonable person would find hostile or

abusive. Whether a reasonable person would find the environment to

be hostile or abusive should be evaluated by looking at the

totality of the circumstances. This includes the frequency of the

discriminatory conduct, its severity, wh ether it is physically

threatening or humilia ting, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work

performance. H arris v. Forklift Systems, Inc.

, 510 U.S. 17, 21-22

(1993).

The district court determined that a reasonable person would

not have found Eddy’s actions to be either hostile or abusive for

two reasons. First, the court noted that Woods was only subjected

to unwelcome touching for a few minutes each day. Second, the

court found that Woods had failed to address how or if her work

performance was affected by Eddy’s roving hands.

Whether the complained of conduct qualifies as severe or

pervasive under our hostile working environment jurisprudence is a

close question. Because the district court’s decision can be

upheld based upon the prompt remedial action element, we need not3 I n Title VII sexual harassment cases where the alleged

harasser is a supervisor, an employer may assert the following

affirmative defense: (1) the employer exercised reasonable care to

prevent and correct promptly any sexually harassing behavior, and

(2) the employee unreasonably failed to take advan tage of any

preventative or corrective opportunities provided by the employer

or to avoid harm otherwise. Burlington Ind. v. Ellerth , 524 U.S.

742, 765 (1998). As mentioned previously, this is not a supervisor

liability case. However, the second prong of the affirmative

defense is instructive to our “co-worker” liability case. To avoid

further harm after July 7, Woods needed to re asonably take

7 rule on whether a reasonable woman could deem Eddy’s conduct to be

severe enough to alter the terms or conditions of her employment.

However, we will assume arguendo that Woods has raised a fact issue

on the fourth element.

2. Prompt Remedial Action

Woods admits that she first reported Eddy’s actions to company

personnel on July 6. The next day a meeting took place to address

the alleged harassment. Delta Beverage told Eddy to stop his

conduct or face further disciplinary action, including termination.

Delta Beverage told Woods to inform Smith or Scherer if further

unwelcome touching occurred. Woods admits that she never informed

them of any further problems with Eddy.

Because we view the facts in the light most favorable to

Woods, we assume that Eddy continued to harass Woods after the July

7 meeting. Even so, Delta Beverage cannot be held liable for

conduct of which it had no knowledge. Woods had the obligation to

report the alleged harassment to Delta Beverage as she had been

instructed. Her failure to do so is fatal to her case. 3advantage of the corrective opportunities provided by her employer.

Woods cannot have expected Delta Beverage to solve her problem when

it had no knowledge that she continued to suffer harassment.

8 Woods bases her contention that Delta Beverage failed to take

prompt remedial action on two factors. First, she claims that

Gordon told her that Gordon and another female employee had been

been subject to inappropriate behavior by Eddy. Woods claims this

demonstra tes that Delta Beverage had prior knowledge of Eddy’s

proclivities toward unwelcome touching.

Even if Gordon’s statements could be deemed admissible

evidence and accepted as true, her argument fails. It is

undisputed that Eddy’s harassment always occurred in private.

Moreover, there is no evidence to suggest that any employee

reported any Eddy harassment to Delta Beverage prior to Woods’ July

6 report. Therefore, there is no basis for a finding that Delta

Beverage had knowled g e of Eddy’s proclivity towards unwelcome

touching prior to July 6.

Second, Woods contends that Delta Beverage should be liable

because the actions the company took against Eddy on July 7 did not

stop the harassment. This argument is also without merit. On July

7, Delta Beverage was not legally obligated to fire Eddy or

separate him from work interaction with Woods. S ee Mota v.

University of Texas Houston Health Sci ence Center , 261 F.3d 512,

525 (noting that an employer need not use the most serious sanction

available to punish a sexual harassment offender). Delta Beverage4 Whether Woods received a copy of Delta Beverage’s sexual

harassment policy is irrelevant because Woods had actual knowledge

of what she should do if Eddy engaged in further inappropriate

touching.

9 took prompt remedial action because (1) district managers told Eddy

to stop the unwelcome touching and informed him that failure to do

so would result in further discipline, including termination; (2)

on July 8, a manager asked Woods whether the harassment had stopped

and was told there were “no problems on that day”; and (3)

supervisors told Woods to inform them of any further harassment. 4

Of course, there is a point at which an emp loyer will be

liable for failing to end harassment notwithstanding their

admonitions to the employee to report further harassment to company

supervisors. For example, assume that Woods had informed Delta

Beverage after July 7 that Eddy was continuing to harass her.

Assume further that Delta Beverage responded by simply giving Eddy

another verbal warning and telling Woods to inform the supervisors

if the harassment continues. At that point, Woods might have an

objective basis for concluding that further reports of harassment

would be futile. Under this hypothetical scenario, Delta

Beverage’s contention that Woods should be required to again inform

the company that Eddy was harassing her would be less persuasive

because it would seem as though the company did not really intend

to stop the harassment. Stated another way, once it becomes

objectively obvious that the employer has no real intention of10

stopping the harassment, the harassed employee is not obliged to go

through the wasted motion of reporting the harassmen t. Clearly,

however, that was not the situation in the case at bar.

In short, Delta Beverage took reasonable steps on July 7 to

correct the harassment. Woods had an obligation to give the

company another opportunity to remedy the problem before deciding

that she could not work there anymore. Therefore, Woods has not

raised a genuine fact issue on the prompt remedial action element.

B. CONSTRUCTIVE DISCHARGE

To prove a constructive discharge, Woods must show that a

“reasonable person in [her] shoes would have felt compelled to

resign.” Faruki v. Parsons, S.I.P., Inc. , 123 F.3d 315, 319 (5th

Cir. 1997). Moreover, to be actionable, Woods must demonstrate a

“greater severity or pervasiveness of harassment than the minimum

required to prove a hostile work environment claim.” B enningfield

v. City of Houston , 157 F.3d 369, 378 (5th Cir. 1998).

As a matter of law, the type of harassment experienced by

Woods does not satisfy this higher standard. A reasonable woman

experiencin g the type of harassment complained of by Woods would

not have felt compelled to resign. A reasonable woman would have

felt compelled to report Eddy’s alleged post-July 7 harassment to

her supervisors. Therefore, we find that the district court did

not err in granting summary judgment on Woods ’ constructive

discharge claim.11

V. CONCLUSION

Woods has not raised a genuine issue of fact on the prompt

remedial action e lement. Therefore, her hostile working

environment claim under both Title VII and Louisiana statutory law

fails as a matter of law. The constructive discharge claim also

fails as a matter of law. Therefore, the district court’s judgment

is AFFIRMED.12