*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 R. 47.5, the court has determined that this opinion should not be published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. 98-30148

(Summary Calendar)

STACIE B. GUARIN,

 Plaintiff-Appellant,

versus

OUR LADY OF LOURDES REGIONAL MEDICAL

CENTER INCORPORATED, ET AL; LUKE MCCOY,

Defendants-Appellees.

Appeal from United States District Court

for the Western District of Louisiana

(USDC No. 95-CV-1910)

January 28, 1999

Before KING, Circuit Judge, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

Appellant Stacie B. Guarin, a nuclear medicine technologist previouslyemployed byAppellee

Our Lady of Lourdes Regional Medical Center, Inc. (“Lourdes”), appeals the district court’s grant

of summary judgment on her Title VII claims of sexual discrimination and sexual harassment filed

against Lourdes. Her sexual discrimination claim focused on the allegation that Luke McCoy, lead

technologist in the radiology department and Guarin’simmediate supervisor, was permitted to work

significantlymore overtime than she was. Her sexual harassment claim focused on allegedly sexually

suggestive and offensive remarks made to her by two Lourdes employees, Patrick Domingue and
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KennethElkins. Domingue was one of Guarin’s co-workers, while Elkins was one of her supervisors.

Guarin argues that the district court erred because a genuine issue of material fact existed with

respect to both of her claims. For the reasons set forth below, we AFFIRM the district court’s grant

of summary judgment as to her claim ofsexual discrimination; AFFIRM the district court’s grant of

summary judgment as to her sexual harassment claim regarding Lourdes’ liability for Domingue’s

alleged behavior; and REMAND her claim ofsexual harassment as it appliesto Lourdes’ liability for

Elkins’ alleged behavior.

I.

“We review a district court's grant ofsummary judgment de novo, applying the same standard

of review as would the district court. Summary judgment is proper only when it appears there is no

genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”

Reingold v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir. 1997) (citations omitted). In making that

determination, the record must be viewed in the light most favorable to the party opposing the

motion. See id.

II.

The district court did not err when it granted summary judgment on Guarin’s overtime sexual

discrimination claim. In its alternative justificationforsummaryjudgment, the district court found that

Guarin had not submitted any evidence that Lourdes actually relied on discriminatory animus when

making its decision not to allow her to work overtime. Plaintiffs bringing sexual discrimination claims

under Title VII must show “the employer actually relied on [the forbidden factor] in making its

decision.” Mooney v. Aramco Services Co., 54 F.3d 1207, 1218 (5th Cir. 1995) (quoting Langley

v. Jackson State University, 14 F.3d 1070, 1075 (5th Cir. 1994) (alteration in original)). Her only

evidence isthat Phillip Trett, director ofthe Lourdes’ radiology department, allegedly said to her that

“she could not work overtime because she was a single mother with a small child.” However, Trett
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was not responsible for assigning overtime work. Rather, the responsibility belonged to Luke

McCoy, lead technologist in Lourdes’ radiology department. In her brief to this Court, Guarin does

not point to any evidence in the record which would support the claim that McCoy relied on “the

forbidden factor” in making his decisions. Our own review of the record has also found no such

evidence. We therefore affirm the district court’s grant of summary judgment as to Guarin’s sexual

discrimination claim. 

III.

Guarin’s second claim against Lourdes is that two of its employees created a hostile work

environment in violation of Title VII. In particular, she alleges Patrick Domingue (a co-worker) and

Kenneth Elkins (one of her supervisors) were responsible for this harassment. The district court

dismissed Guarin’s sexual harassment claim in its entirety because her evidence was insufficient as

a matter of law to satisfy the fifth element in the hostile work environment test, namely, “that the

employer either knew or should have known of the harassment and failed to take prompt remedial

action.” See, e.g., DeAngelis v. El Paso Municipal Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.

1995).

After the district court made its decision, however, the Supreme Court handed down two

important decisions which redefine the legal landscape for an employer’s liability for sexual

harassment by its employees. See Burlington Ind. v. Ellerth, __ U.S. __, 118 S.Ct. 2257, 2270

(1998); Faragher v. CityofBocaRaton, __ U.S. __, 118 S.Ct. 2275, 2292-93 (1998). Notably, these

decisions only alter the standard governing an employer’s vicariousliability for the sexual harassment

by one of its supervising employees. It does not alter the terrain for plaintiffs alleging that a coworker harassed them. See Williamson v. City of Houston, 148 F.3d 462, 463-64 (5th Cir. 1998).

We thusfirst turn to Guarin’ssexual harassment claimasit appliesto Lourdes’ liability for co-worker

Domingue’s alleged behavior.
 

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“The defense comprises two necessary elements: (a) that the employer exercised reasonable care

to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee

unreasonably failed to take advantage of any preventive or corrective opportunities provided by the

employer or to avoid harm otherwise.” Burlington Ind, __ U.S. __, 118 S.Ct at 2270.

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A.

A claim of hostile work environment by a co-worker under Title VII must be supported by

proof “that the employer knew orshould have known ofthe harassment in question and failed to take

prompt remedial action.” Williamson, 148 F.3d at 463 (quoting Jones v. Flagship Int’l, 793 F.2d 714,

720 (5th Cir. 1986) (citation omitted)). To fulfill this requirement, Guarin relies on her alleged

complaint to Sharon Lene, a vice-president at Lourdes, shortly before she resigned. We affirm the

district court’s decision that Guarin cannot create a genuine issue of materialfact on thisissue, albeit

for a different reason than the district court relied upon. See Rizzo v. Children’s Learning Centers,

Inc., 84 F.3d 758, 763 (5th Cir. 1996). Guarin explained in her deposition that she complained to

Lene only about Elkins’ behavior, and not Domingue’s conduct. When asked if she ever reported

Domingue’s comments, her answer was no. Under such circumstances, we cannot hold Lourdes

actually knew of Domingue’s alleged sexual harassment. We thus affirmthe district court’s dismissal

of Guarin’s sexual harassment claim with respect to Lourdes’ liability for Domingue’s behavior. 

B.

We now turn to Guarin’s sexual harassment complaint as it applies to Lourdes’ liability for

supervisor Elkins’ alleged behavior. We are obliged to apply the rules announced by the Supreme

Court retroactively, see, e.g., Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 90 (1993), and

therefore consider the district court’s dismissal of Guarin’s complaint in the light of Burlington and

Faragher. Under these cases, Lourdes can escape liability if it fulfills a two-part affirmative defense.

See Burlington Ind, __ U.S. at __, 118 S.Ct. at 2270 (describing the affirmative defense); Faragher,

__ U.S. at __, 118 S.Ct. at 2292-93 (same).1“No affirmative defense is available, however, when the

supervisor's harassment culminatesin a tangible employment action, such as discharge, demotion, or
 

2The Burlington Court explained the concept of a tangible employment action in part by citing to

a line of cases in the Seventh Circuit discussing adverse employment actions. See Burlington Ind, __

U.S. at __, 118 S.Ct. at 2268-69 (citing Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d

132, 136 (7th Cir. 1993); Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir. 1996)).

Importantly, the Seventh Circuit has observed that, in some circumstances at least, probation may be

an adverse employment action. See Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996); see

also Murray v. Kutzke, 967 F. Supp. 337, 345 (N.D. Ill. 1997) (citing Smart for the proposition that

“super probation” status is an adverse employment action).

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undesirable reassignment.” Burlington Ind, __ U.S. at __, 118 S.Ct. at 2270; Faragher, __ U.S. at

__, 118 S.Ct. at 2292-93. In defining “tangible employment action,” the Supreme Court focuses on

action that “constitutes a significant change in employment status or results in a decision causing a

significant change in benefits.” Burlington Ind, __ U.S. at __, 118 S.Ct. at 2268. The Court further

emphasized thatsuch an action “inmost casesinflicts direct economic harm.” Id. at 2269. Therefore,

we must first decide whether Elkins’s alleged sexual harassment culminated in a tangible employment

action against Guarin.

The record is not sufficiently developed to inform our analysis of the tangible employment

action issue as required by the recent Supreme Court precedent. Most notably, Guarin alleges that

Elkins placed her on probation shortly before she resigned. We cannot decide on this record whether

probation is a tangible employment action as defined by Burlington 2because neither the parties nor

the trial court had the benefit ofthe Burlington or Faragher at the summary judgment stage. Without

additional information about the effects of Guarin’s probation, it is impossible to determine if the

Court’s definition of a tangible employment action can be reasonably read to include Guarin’s

probationary status. Accordingly, we vacate the judgment of the district court on this issue and

remand. 

IV.

For the foregoing reasons, we AFFIRM the district court’s grant ofsummary judgment asto

her claim ofsexual discrimination; AFFIRM the district court’s grant ofsummary judgment asto her

sexual harassment claimregarding Lourdes’liabilityfor Domingue’s alleged behavior; and VACATE
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and REMAND for further proceedings the grant of summary judgment as to her claim of sexual

harassment as it applies to Lourdes’ liability for Elkins’ alleged behavior.