* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in Local Rule 47.5.4.

1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-60607

CARLA LARRY,

Plaintiff-Appellant,

versus

MARY GRICE AND THE NORTH MISSISSIPPI MEDICAL CENTER,

Defendants-Appellees.

__________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(1:95-CV-336-D-D)

__________________________ August 5, 1998 Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM: *

Carla Larry appeals the summary judgment granted to defendants o n her claims of sexual

harassment, retaliation, and constructive discharge under Title VII of the Civil Rights Act of 1964,

as amended, 4 2 U.S.C. §§ 2000e e t seq., and the district court’s failure to exercise supplemental

jurisdiction over state law claims brought in the same suit. For the reasons set forth below, we

AFFIRM in part and VACATE and REMAND in part.2

We begin by noting that Larry concedes t hat defendant Grice cannot be held liable as an

individual under Title VII, see Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994). Accordingly,

we affirm the summary judgment on all claims with respect to Grice.

I.

The district court granted summary judgment to defendants on the ground tha t, under

controlling Fifth Circuit case law, same-sex sexual harassment was not actionable under Title VII.

That case law has since been over ruled by the Supreme Court, which made clear in O ncale v.

Sundow ner Offshore Servs., Inc., 118 S.Ct. 998 (1998), that Title VII does provide protecti on from

same-sex sexual harassment. Thus, the summary judgment against Larry on the sexual harassment

claim cannot be affirmed on the ground relied upon by the district court.

In a f ootnote in its appellate brief, NMMC asserts that even if Larry has a cognizable claim

against NMMC--as it is now clear that she does--that claim should not survive summary judgment

because Larry did not establish a genuine issue as to whether NMMC took prompt remedial action

when it received notice of the alleged harassment. There is no indication in the record, however, that

this argument was ever raised in support of summary judgment in the court below. Although a grant

of summary judgment may at times be affirmed on alternate grounds, the grounds relied upon “must

at least have been proposed or asserted in [the lower] court by the movant.” J ohnson v. Sawyer, 120

F.3d 1307, 1316 (5th Cir. 1997) (citations omitted). Thus, we must remand so that the district court

can consider the issue. In so doing, we note that on the record before us it is undisputed that NMMC

investigated Larry’s complaint within a couple of days of her going to her supervisor on February 9,

1995, and that NMMC then warned Grice that she would be terminated if any further complai n ts2 We note that the district court found that: “NMMC took prompt effective steps to stop the

p laint iff’s alleged harassment as soon as Larry notified her supervisors. Although Grice was no t

transferred out of Larry’s work area, the co urt is of t he opinion that NMMC’s actions of

reprimanding Grice were sufficient under the circumstances and reasonably ca lculated to end the

alleged ha rassment.” The reason we do not affirm the summary judgment on this basis is that the

district court did not make this finding in the context of deciding whether to grant summary judgment

on the harassment claim (it came up in the court’s discussion of Larry’s constructive discharge claim)

and, more importantly, there is no indication in the record that Larry had an opportuni ty to address

this questi o n. On remand, NMMC is free to make a new summary judgment motion so that the

district court can consider the issue fully in light of the arguments of both parties.

3 about her were made. Larry does not claim that Grice harassed her between the time she reported

the problem to her supervisor and when she resigned later that month. If NMMC did not have notice

of the alleged problem before February 9, 1995, and took prompt remedial action at that time, then

it is entitled to summary judgment on the harassment claim. 2

II.

L arry also contends on appeal that the district court erred in dismissing her retaliati on and

constructive discharge claims. She argues first that the district court erred in entertaining the

summary judgment motion on the retaliation and constructive discharge issues before allowing

discovery. Apparently Larry consented to a stay of discovery pending the outcome of the summary

j udgment motion with respect to the question of whether there could be liability for same-sex

harassment, but she requested that summary judgment on all other issues be denied as premature.

The district court denied this request on th e ground that no additional discovery would affect the

outcome of the summary judgment motion.

Parties are entitled to adequate discovery. S ee Gunaca v. State of Texas, 65 F.3d 467, 469

(5th Cir. 1995) (noting that adequate time for discovery is required by Federal Rule of Civil

Procedure 56). However, as the district court noted, quoting C ormier v. Pennzoil, 969 F.2d 1559,3 Of course, whether or not to reopen discovery on the harassment claim on remand is within

the district court’s discretion--as defined by the parameters noted in the text.

4 Larry does not allege t hat any requests by her for transfer were denied for retaliatory

reasons, only that a vice president of NMMC failed to provide her assistance in transfer ring after

promising that he would.

4 1561 (5th Cir. 1992), a “plaint iff’s entitlement to discovery prior to a ruling on a summary judgment

motion may be cut off when, within the trial court’s discretion, the record ind icates that further

discovery will not likely produce facts necessary to defeat the motion.” Here, the district court was

within its discretion in cutting off discovery given that for purposes of the summary judgment motion

the defendants did not contest t he fact s as alleged in Larry’s complaint, and that Larry offered no

in dicat io n o f what information could be gained through additional discovery that would create a

genuine issue of material fact. S ee Williams v. Phillips Petroleum Co., 23 F.3d 930, 937-38 (5th Cir.

1994). 3

Larry argues that, even without additional discovery, she has presented evidence sufficient

to create genuine issues w it h respect to her retaliation and constructive discharge claims and that

summary judgment on these claims was therefore improper. We disagree.

Under Title VII, the elements of a prima facie case of retaliation are: (1) the claimant engaged

in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link

existed between the protected activity and the adverse employment act ion. See Long v. Eastfield

College, 88 F.3d 30 0, 304 (5th Cir. 1996). As the district court below found, two of the three

retaliatory acts alleged by Larry fail as a matter of law to constitute adverse employment actions.

Neither the write-up Larry received on the day she submitted her resignation, nor her continued

assignment to a position in which she had to work with Grice, 4 involved the sort of “ultimate5 At oral argument, NMMC cited M attern for the proposition tha t adverse employment

actions cannot be taken against an employee who has resigned. Counsel quoted the portion of the

opinion that says: “absent an ultimate employment decision prior to her resignation, there can be no

adverse e mplo yment action.” 104 F.3d at 709. This statement came in the context of the court

explaining why employment actions that might eventually have led to termination, but did not do so

because the employee’s resignation pre-empted that ultimate employment decision, were not adverse

employment actions under Title VII. The sentence preceding the one quoted said: “She preempted

a possible ultimate employment decision--she resigned.” Id. ( emphasis added). Given this context,

we understand the court to have been saying that a retaliatory termination cannot occur a fter a

resignation. To the extent Mattern said that no adverse employment action can occur following a

resignation, that assertion was dicta that was in conflict with our previous case law, s ee Payne v.

McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. 1981) (holding an employer liable

for retaliation against a former employee who participated in activities protected by Title VII where

the retaliation took the form of failure to rehire). More importantly, regardless of these interpretive

considerations, to the extent

Mattern said no adverse emp lo yment action can occur following a resignation, that position was

overridden by the Supreme Court’s decision in Robinson, 117 S. Ct. 843, which was decided a month

later.

5 employment decisions” that are required to establish the adverse-employment-action element of a

retaliation claim. See Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995).

In contrast, the third retal iat o ry act alleged by Larry--the denial of a request for a leave of

absence--does not fail as a matter of law t o st at e an adverse employ ment action. See Mattern v.

Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997), cert. denied, 118 S. Ct. 336 (1997) (citing

Dollis, 77 F.3d at 781-82, for view that decisions about granting leave can be adverse employment

actions). We do not agree with the dist rict court t hat the fact that Larry had submitted her

resignation prior to requesting a leave of absence precluded the possibility that the d enial of the

request was retaliatory. Employees’ rights to protection from retaliation do not end simply because

their employment does. S ee Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997). 5 We find, nonetheless,

that summary judgment on the retaliation claim was proper because Larry failed to meet her burden

with respect to the causation element of the claim.6

In general, a party moving for summary judgment “does not need to negate the elements of

claims on which the nonmoving parties would bear the burden of proof at trial. The movant’s burden

is only [t o ] po int out the absence of evidence supporting the nonmoving party’s case.” S tults v.

Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (internal quotati on marks and citations omitted;

brackets in original). M

cDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973), and its progeny

have elaborated particular burden-shifting rules that apply in Title VII cases. Even under these rules,

however, th e ult imat e burden on the claimant in a retaliation case is to show that ‘but for’ the

protected activity she would not have been subject to the adverse employment action. See McMillan

v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir.1983) (recognizing that the burden-shifting rules

of McDonnell Douglas apply to retaliation claims under Title VII, but stating that “[w]hen, however,

the essential facts asserted by each of the parties are not in dispute, the final shifting to the plaintiff

may be expressed more app ro priately as one of showing that ‘but for’ the protected activity, the

[ adverse employment action] would not have occurred”); cf. Stults, 76 F.3d at 657 (uphold ing a

summary judgment in favor of an employer on an Age Discrimination in Employment Act claim and

stating: “The plaint iff at all times retains the burden of persuading the trier of fact that impermissible

discrimination motivated t he adverse employment decision. Therefore, to overcome a properly

supported motion for summary judgment, the plaintiff must produce sufficient evidence to create a

genuine issue of material fact on this ultimate quest ion.”). Here, Larry has not alleged facts that

could support a finding that but for her harassment complaint she would have been granted a leave

of absence. Her own evidence indicates that NMMC told her that her request for a leave of absence

was denied because she had turn ed in her resignation. The only evidence advanced by Larry to

contradict this account was her testimony that at her exit interview a personnel employee told her that6 P ut another way, Larry failed, for summary judgment purposes, to present evidence that

could overcome the legitimate nondiscriminatory reason for the denial of leave that was apparent

from Larry’s own evidence, i.e., that it was denied because she had submitted her resignation. While,

as noted above, a denial of a leave of absence can be an adverse employment action and resignation

does not foreclose the possibility of unlawful retaliation, it will be more difficult to infer retaliatory

mo t ives in cases involving such actions than in more typical retaliation cases. S ee McD onnell

Douglas, 93 S. Ct. at 1824 n.13 (noting that the requirements of a prima facie case vary depending

on the situation). Summary judgment is appropriate where, as here, in light of the plaintiff’s own

account of events, a factfinder could not reasonably conclude that the protected activity caused an

adverse employment action.

7 We note that NMMC had filed a motion for damages and double costs in this case, pursuant

to Federal Rule of Appellate Procedure 38, but has withdrawn that motion in light of the decision in

Oncale . We accept the withdrawal of the motion.

7 it was possible for NMMC to grant her a leave of absence. But a retaliation claim requires more than

a showing that an employer could have offered the employee a beneficial option and did not do so.

In the abs ence of any evidence that the decision not to grant a leave was prompted by retaliatory

motives, a factfinder, as a matter of law, could not conclude that Larry had supported her burden on

the causation element of her claim. S ee Mayberry v. Vought Air craft Co., 55 F.3d 1086 (5th Cir.

1995). 6 Accordingly, we affirm the summary judgment in favor of NMMC on the retaliation claim.

With respect to the grant of summary judgment in favor of the NMMC on the constructive

discharge claim, we affirm for essentially the reasons put forth by the d istrict court. Fi nal l y , we

decline to revisit the district court’s decision to deny supp lemental jurisdiction. Because the state

claims were dismissed without prejudice, on remand La rry is free to reintroduce a motion for

supplemental jurisdiction over those claims.

The judgment is AFFIRMED in part and VACATED and REMANDED in part for further

proceedings not inconsistent with this opinion. 7