* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published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 5 TH C IR 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 previously employed by Appellee

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

of su mmary 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’s immediate supervisor, was permitted to work

significant ly more 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 and2

Kenneth Elkins. Domingue was one of Guarin’s co-workers, while Elkins was one of her supervisors.

Guarin argues that the district court erred because a gen uine 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 of sexual discrimination; AFFIRM the district court’s grant of

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

alleged behavior; and REMAND her claim of sexual harassment as it applies to Lourdes’ liabilit y for

Elkins’ alleged behavior.

I.

“We review a district court's grant of summary 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 mo st 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 justification for summary judgment, 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 fa ctor] in maki ng i ts

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 is that Phillip Trett, director of the Lourdes’ radiology department, allegedly said to her that

“she could not work overtime because she was a single mother with a small child.” However, Trett3

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 M cCoy relied on “the

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

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

discrimination claim.

III.

Guarin’s sec o nd 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

Kenn et h 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 fift h element in t he 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).

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

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

harassment by its emplo yees. S ee Burlington Ind. v. Ellerth

,

__ U.S.

__, 118 S.Ct. 2257, 2270

(1998); Faragher v. City of Boca Raton

,

__ U.S.

__, 118 S.Ct. 2275, 2292-93 (1998). Notably, these

decisions only alter the standard governing an employer’s vicarious liabilit y for the sexual harassment

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

We thus first turn to Guarin’s sexual harassment claim as it applies to Lourdes’ liabilit y for co-worker

Domingue’s alleged behavior.1 “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 plaint iff 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.

4 A.

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

proof “that the employer knew or should have known of the harassment in question and failed to take

prompt remedial action.” W illiamso n

, 148 F.3d at 463 (quoting Jones v. Flagship Int’l

, 793 F.2d 714,

720 (5th Cir. 1986) (citation omitted)). To fulfill t his 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 material fact on this issue, albeit

for a different reason than the district court relied upon. S ee 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 Doming ue’s conduct. When asked if she ever reported

Domingue’s comments, her answer was no. Under such c ircumstances, we cannot hol d Lourdes

actually knew of Domingue’s alleged sexual harassment. We thus affirm the 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 t o apply the rules announced by the Supreme

Court re troactively, s ee, 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 B urlington 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 culminates in a tangible employment action, such as discharge, demotion, or2 The 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); F laherty v. Gas Research Institute

, 31 F.3d 451, 456 (7th Ci r. 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).

5 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.” B urlington Ind

,

__ U.S. at

__, 118 S.Ct. at 2268. The Court further

emphasized that such an action “in most cases inflict s direct economic harm.” I d

. 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 tangi ble 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 2 because neither the parties nor

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

additional information about the eff ect s 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 of summary judgment as to

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

sexual harassment claim regarding Lourdes’ liabilit y for Domingue’s alleged behavior; and VACATE6

and RE MAND fo r further proceedings the grant of summary judgment as to her claim of sexual

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