*

 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 R. 47.5, the court has determined that this opinion should not be published and is not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. 96-50749

STACY EVANS ROBARTS,

ANGELA S. EFFINGER,

Plaintiffs-Appellants,

versus

CATFISH PARLOUR INCORPORATED,

DON MILLER,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

(A-95-CV-210)

August 15, 1997

Before GARWOOD, BENAVIDES and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:*

Appellants, Stacy Evans Robarts and Angela S. Effinger, appeal the district court’s grant of

summary judgment on their claims of hostile work environment sexual harassment and quid pro quo

sexual harassment in violation of Title VII in favor of Appellees, Catfish Parlour Incorporated
 

2

 Court of Appeals may ignore any erroneous holding of the district court and affirm judgment on other grounds.

Matthews v. Wozencraft, 15 F.3d 432, 439 (5th Cir. 1994); Degan v. Ford Motor Co., 769 F.2d 889, 892 (5th cir.

1989); Church of Scientology v. Cazares, 638 F.2d 1272 (5th Cir. Mar. 1981). 

 

3 Robarts was employed at Catfish Parlour from July 29, 1993 through September 2, 1993 and Effinger was

employed from June 21, 1993 through November 23, 1993.

2

(“Catfish Parlour”) and Don Miller (“Miller”). Appellants contend that the district court reversibly

erred in concluding that there was no genuine issue of material fact. For the following reasons, we

affirm the summary judgment in favor of Appellees.2

FACTUAL BACKGROUND & PROCEDURAL HISTORY

Appellants, StacyRobarts(“Robarts”) and Angela Effinger(“Effinger”), both 18 years of age

at the time of the conduct complained of and enrolled in high school were employed as hostesses at

Catfish Parlour in the later half of 1993.3 During this time, the restaurant was managed by Don Miller

(“Miller”), a 60-year-old man. As the manager of the restaurant, Miller exercised complete authority

over the terms and conditions of employment, including control over the hiring and firing of

employees. 

Robarts and Effinger complain that Miller made sexual advances and innuendos that resulted

in their constructive discharge from their jobs. Robarts complains that Miller hugged and attempted

to kiss her, frequently commented that she needed a “sugar daddy,” suggested that she needed a man

who would “take care” of her and that she should replace her boyfriend with an “older man . . . who

would reward hersexual activity with some sort of tangible gift or money or support.” At a meeting

to discuss the difficulties she was encountering with other employees, Ro barts alleges that Miller

informed her of his sexual preferences and sexual problems in a manner that lead her to believe that

he was propositioning her. Robarts reported to work one time after the meeting with Miller, a day
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that Miller was not scheduled to work. She states that as a result of Miller’s sexual advances and

the meeting with Miller,she quit her job. Effinger complains that Miller began to make sexually

suggestive comments to Effinger approximately four months after her employment. According to

Effinger, the harassment continued for approximately two and a half weeks, ceasing upon Effinger’s

resignation. Effinger contends that Miller propositioned her to engage in a sexual relationship in

exchange for payment in the form of favored treatment and gifts. Additionally, he stood

inappropriately close to her, and told her on a regular basis that she needed a “sugar daddy.” Miller

informed Effinger to keep his “sugar daddy” comments secret. Effinger also complains that Miller

told her that “women really don’t need men because they have dildos, vibrators, and their hands.”

In one particular instance, while in Miller’s office, Miller questioned Effinger about her personal

relationships and described the possessions he had purchased for his lady friend, implying that

Effinger could also have these things in exchange for sexual favors. After this encounter, Effinger

was so frightened that Miller would physically assault her that she resigned.

Neither of the Appellants responded to Millers advances nor did they complain to the

corporate office. According to the Appellants, the restaurant’s owner, David Kerbow (“Kerbow”)

and Miller were very good friends. 

Appellantsfiled suit against Catfish ParlourInc. and Miller alleging hostile work environment

sexual harassment and quid pro quo sexual harassment pursuant to Title VII. They also sued Miller

alleging intentional infliction of emotional distress. Acting upon the Defendants’ motion, the district

court granted summary judgment holding that the conduct complained of was not sexual in nature

and therefore not prohibited by Title VII.

STANDARD OF REVIEW
4

We review a district court’s grant of summary judgment de novo, applying the standard

articulated in Fed. R. Civ. P. 56(c). Ward v. Bechtel, 102 F.3d 199, 202 (5th Cir. 1997). Rule 56(c)

mandates the entry of summary judgment against a party who has failed to make an evidentiary

showing sufficient to establish an essential element of her case. Id. (citing Celotex Corp. v. Catrett,

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In reviewing the district court’s decision,

we must consider all the evidence presented in the light most favorable to the non-movants. Waymire

v. Harris County, Texas, 86 F.3d 424, 428 (5th Cir. 1996). “The motion is properly granted when

the facts and inferences point so strongly in favor of the movant that a rational jury could not arrive

at a contrary verdict.” London v. MAC Corp. of America, 44 F.3d 316, 318 (5th Cir. 1995). “If

there is substantial evidence -- that is, evidence of such quality and weight that reasonable and fairminded jurors might reach a different conclusion -- then the motion should have been denied.”

Waymire, 86 F.3d at 428.

DISCUSSION

A. Hostile Work Environment

A hostile work environment claim arises when a plaintiff alleges harassment “sufficiently

severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive

working environment.” Waltman v. International Paper Co., 875 F.2d 468, 477 (5th Cir. 1989).

In order to establish a claimagainst an employer for hostile work environment sexual harassment, the

plaintiffmust show: (1) the employee belongs to a protected group; (2) the employee was subject to

unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) the

harassment complained of affected a term, condition or privilege of employment; and (5) respondeat

superior, i.e. that the employer knew or should have known of the harassment in question and failed
 

4

 The district classified Miller’s conduct as a “non-sexual, paternal interest” and bragging. The court reasoned

that since there were no pinches, grabs, groping, lip-to-lip kissing, or attempts at sexual closeness then there was not

enough evidence to establish hostile work environment sexual harassment. It stated that there must be more in the way

of sexual innuendo or contact than was present in the subject case.

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to take prompt remedial action. Jones v. Flagship International, 793 F.2d 714, 719-20 (5th Cir.

1986). 

In the case sub judice, the district court concluded that Appellants’ claim of hostile work

environmentsexualharassmentfailed because Appellants produced no evidence that Miller’s conduct

wassexual in nature4and that appellants had failed to establish that Miller’s conduct was unwelcome.

In the alternative, the district court also concluded that Miller’s conduct did not rise to the level of

the extremely insensitive conduct that affected the Appellants’ opportunity to succeed in the

workplace. Though we disagree with some of the district court’s characterizations of the evidence,

we affirm the grant of summary judgment.

To avoid summary judgment, Appellants were required to assert evidence of respondeat

superior. We have held that an employer will be held liable for the discriminatory acts of an employee

if it knew or should have known of the employee’s offensive conduct and failed to take steps to

repudiate that conduct and eliminate the hostile environment. Farpella-Crosby v. Horizon Health

Care, 97 F.3d 803, 807 (5th Cir. 1996). An employee asserting a claim of hostile work environment

sexual harassment must allege factssufficient to demonstrate the employer had actualor constructive

knowledge of the harassment. Waltman, 875 F.2d at 478. In this case, the Appellants concede that

they did not complain about the harassment to management, thereby precluding a claim of actual

knowledge. However on appeal, appellants assert that Catfish Parlour had constructive notice of

Miller’s conduct. 
 

5 Appellants assert that Catfish Parlour’s owner, David Kerbow, was a good friend of Millers and often

participated in the harassment of waitresses. Appellants also assert that Kerbow had failed to respond to previous

claims of sexual harassment. Because the record fails to produce any evidence to substantiate these arguments, we

conclude they are insufficient to create a genuine issue of material fact 

6

Constructive notice can be demonstrated by showing the pervasiveness of the harassment

which gives rise to the inference of knowledge or constructive knowledge. Id. Appellant Robarts

asserts that Miller attempted to hug and kiss her, told her that she needed a sugar daddy, and in a

private meeting informed her of his sexual preferences and problems. Appellant Effinger asserts that

Miller’s harassment occurred over a limited period of two and a half weeks and consisted of him

standing too close to her, informing her that she needed a sugar daddy, and a comment that “women

really don’t need men because they have dildos, vibrators, and their hands.” Though we find Miller’s

comments were completely inappropriate, Appellants failed to assert any facts from which it could

be concluded that management should have known of Miller’s conduct.5 Moreover, the appellants

unsupported assertion that other employees were aware of Miller’s actions does not provide a basis

for this court to infer that Catfish Parlour’s management knew or should have known of the

harassment. Therefore, we affirm the district court’s grant of summary judgment as to the appellants’

hostile work environment sexual harassment claimon the groundsthat appellantsfailed to allege facts

showing that Appellee Catfish Parlour knew or should have known of Miller’s conduct.

B. Quid Pro Quo Harassment

A claim of quid pro quo sexual harassment results when an employer requires sexual favors

from an employee in exchange for concrete employment benefits. Meritor Savings Bank, FSB v.

Vinson, 106 S. Ct. 2399, 2403 (1986). To establish a prima facie case of quid pro quo harassment,

the plaintiffmust demonstrate: (1) that she is a member of a protected group; (2) that she wassubject
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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 of conditions

of her employment; and (5) respondeat superior. Ellert v. University of Texas at Dallas, 52 F.3d

543, 545 (5th Cir. 1995). A review of the record reveals no evidence that Miller offered concrete

employment benefitsto either of the appellantsin exchange for sexualfavors. Appellants’ assertions

without more cannot support their claims of quid pro quo sexualharassment. Therefore, we conclude

that the district court properly granted summary judgment as to appellants’ claims of quid pro quo

sexual harassment.

The judgment of the district court is therefore AFFIRMED.