Garcia v. Elf Atochem North America ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-1257
Summary Calendar
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FREDDY GARCIA,
Plaintiff-Appellant,
versus
ELF ATOCHEM NORTH AMERICA,
d/b/a Ozark Mahoning & Co.,
ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Texas
______________________________________________
( July 29, 1994 )
Before GARWOOD, SMITH and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Freddy Garcia (Garcia) filed this suit
against defendants-appellees Elf Atochem North America, Inc. (Elf),
Jerry Mowell (Mowell), and Rayford Locke (Locke) (collectively, the
defendants), alleging that he had been sexually harassed during his
employment in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (Title VII). The district court
granted summary judgment in favor of the defendants and dismissed
Garcia's case. Garcia now appeals. We affirm.
Facts and Proceedings Below
Garcia began working at the Seagraves, Texas, plant of the
Ozark-Mahoning Company (Seagraves Ozark) in December 1984.
Seagraves Ozark is a Delaware corporation, and is a wholly-owned
subsidiary of Delaware Chemicals Corporation, which in turn is a
subsidiary of Elf. Mowell was a plant manager at Seagraves Ozark
during Garcia's employment there. Locke was a plant foreman at
Seagraves Ozark during this same period, but left the plant in
February 1992 and did not return. Although Locke was a supervisor
at Seagraves Ozark, he was not Garcia's supervisor.
Garcia's employment at Seagraves Ozark was governed by a
collective bargaining agreement between Seagraves Ozark and Local
826 of the International Union of Operating Engineers (the Union).
The agreement contains provisions prohibiting sex discrimination
and establishing a grievance and arbitration procedure.
On May 3, 1991, Garcia reported to his Union steward, Vick
Cornett, who then reported to Mowell, that Locke had "sexually
harassed" Garcia. Garcia alleged that on several occasions between
March and May of 1991, Locke had approached Garcia from behind and
"reach[ed] around and grab[bed] [Garcia's] crotch area and ma[de]
sexual motions from behind [Garcia]." In response to Garcia's
complaint, Seagraves Ozark reprimanded Locke and informed him that
any further incidents would result in his termination. After he
was reprimanded, no further incidents occurred between Locke and
Garcia and Garcia continued to work at Seagraves Ozark.
Prior to Garcia's complaint, Seagraves Ozark had received two
other arguably similar complaints about Locke's conduct: one in
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1986 and one in 1988. The conduct complained of was viewed as
"horseplay" and was not alleged to be sexually motivated. After
these complaints, Locke was counselled about his behavior and
informed that his conduct was not appropriate for a supervisor.
Following this counselling, no further complaints were reported to
Seagraves Ozark until Garcia's May 3, 1991, complaint.
On June 4, 1991, Garcia filed a charge of employment
discrimination with the Equal Employment Opportunities Commission
(EEOC). Thereafter, on June 30, 1992, Garcia filed the instant
action. In his complaint, Garcia alleged that he had been sexually
harassed in violation of Title VII, and named as defendants Elf,
Mowell, and Locke. Garcia's complaint also alleged several state
law causes of action. He sought compensatory and punitive damages,
as well as costs, fees, and any "[i]njunctive relief the Court may
deem just."
On February 1, 1993, Mowell and Elf filed a motion for summary
judgment as to all claims. Locke filed a separate motion for
summary judgment on that same date. On March 1, 1993, the district
court granted the defendants' motions for summary judgment as to
the Title VII claim. The court based its decision on its
conclusions that (1) neither Garcia nor Locke were employees of
Elf, but were instead employees of Seagraves Ozark; (2) Mowell took
immediate corrective steps in response to Garcia's May 3, 1991,
complaint; (3) Locke did not bother or attempt to harass Garcia
after the warning and reprimand by Mowell in May of 1991; (4)
Seagraves Ozark had a policy prohibiting sexual harassment posted
on its bulletin board for several years prior to May 1991; and (5)
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because Garcia failed to name Locke as a respondent in his EEOC
complaint, he had not exhausted his administrative remedies against
Locke in the alleged sexual harassment claim. In addition to
granting summary judgment on the Title VII claim, the district
court dismissed the state law claims without prejudice.
The district court subsequently denied Garcia's motion for
reconsideration which was directed to the Title VII claim only. On
appeal, Garcia challenges only the summary judgment on the Title
VII claim.
Discussion
This case comes to us from a grant of summary judgment against
the party with the burden of proof at trial. In reviewing a
summary judgment, we review the record de novo, see Topalian v.
Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S. Ct. 82
(1992), and we apply the same standard as the district court.
Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989). We
must "review the facts drawing all inferences most favorable to the
party opposing the motion." Reid v. State Farm Mut. Auto. Ins.
Co., 784 F.2d 577, 578 (5th Cir. 1986). If the record taken as a
whole could not lead a rational jury to find for the nonmoving
party, there is no genuine issue for trial. Boeing Co. v. Shipman,
411 F.2d 365, 374-75 (5th Cir. 1969) (en banc). "Such a finding
may be supported by the absence of evidence to establish an
essential element of the nonmoving party's case." Hibernia Nat'l
Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citations
omitted). Additionally, "[w]e may affirm a summary judgment on
grounds other than those relied upon by the district court when we
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find in the record an adequate and independent basis for that
result." Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250, 1255
(5th Cir. 1990) (citations omitted). Once a movant who does not
have the burden of proof at trial makes a properly supported
motion, the burden shifts to the nonmovant to show that a summary
judgment should not be granted. Celotex Corporation v. Catrett,
106 S. Ct. 2548, 2552-53 (1986). A party opposing such a summary
judgment motion may not rest upon mere allegations of his
pleadings, but must set forth and support by summary judgment
evidence specific facts showing the existence of a genuine issue
for trial. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2514
(1986).
Title VII provides that where a court finds that an employer
has engaged in unlawful employment practices, it may order action
"which may include, but is not limited to, reinstatement or hiring
of employees, with or without back pay, . . . or any other
equitable relief as the court deems appropriate." 42 U.S.C. §
2000e-5(g). Compensatory and punitive damages are not available
under Title VII for conduct occurring before the effective date of
the Civil Rights Act of 1991. Landgraf v. USI Film Prods., 968
F.2d 427, 431 (5th Cir. 1992), aff'd, 114 S. Ct. 1483 (1994).
Since the conduct complained of by Garcia took place in May of
1991, and the damages provisions of the Civil Rights Act of 1991
did not become effective until November 21, 1991, Garcia could only
seek equitable relief. Yet, because Garcia continued to work for
Seagraves Ozark in the same position with at least the same
compensation, and because Locke no longer works for Seagraves
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Ozark, neither an award of back pay nor any other form of
injunctive relief would be appropriate. Thus, any harm Garcia may
have suffered as a result of Locke's harassment is not redressible
under Title VII. For this reason, Garcia's claim fails and we will
uphold the summary judgment.
Garcia's Title VII claim was also properly dismissed because
he did not establish a prima facie case against any of the
defendants.
I. Defendants
A. Elf Atochem
Title VII prohibits an "Employer" from discriminating "against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's . . .
sex." 42 U.S.C. § 2000e-2(a)(1). The district court concluded
that summary judgment was appropriate as to Elf in part because
Title VII liability attaches only to the plaintiff's employer, and
the court found that Elf was not Garcia's "Employer" for the
purposes of the statute.
In his response to Elf's motion for summary judgment, Garcia
argued that the district court should find that Elf was his
employer based solely on Mowell's deposition testimony that (1)
Garcia was employed by Seagraves Ozark, and (2) Seagraves Ozark is
a wholly owned subsidiary of Elf. These two facts standing alone,
however, are not enough to establish that Elf is Garcia's employer.
Apparently, Garcia's argument is that Elf and Seagraves Ozark
are a "single, integrated enterprise," making Seagraves Ozark's
status as Garcia's employer attributable to Elf. Although "[t]he
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term 'employer' as used in Title VII of the Civil Rights Act was
meant to be liberally construed,"1 a parent and subsidiary cannot
be found to "represent a single, integrated enterprise" in the
absence of evidence of "(1) interrelation of operations, (2)
centralized control of labor relations, (3) common management, and
(4) common ownership or financial control." Trevino v. Celanese
Corp., 701 F.2d 397, 403-04 (5th Cir. 1983); see also Armbruster v.
Quinn, 711 F.2d 1332 (6th Cir. 1983) (parent and subsidiary which
were highly integrated with respect to ownership and operations
constituted single "employer"). But cf. Nationwide Mut. Ins. Co.
v. Darden, 112 S. Ct. 1344, 1348-49 (1992) (noting that when a
statute does not helpfully define a term, courts should not apply
a meaning that is broader than its common-law definition, in
adopting common-law test for deciding who qualifies as an
"employee" under ERISA). In the case sub judice, Garcia failed to
identify any such evidence in his opposition to Elf's motion for
1
The term "employer" is defined in the Act as follows:
"(b) The term 'employer' means a person engaged in an
industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or
more calendar weeks in the current or preceding
calendar year, and any agent of such a person, but such
term does not include (1) the United States, a
corporation wholly owned by the Government of the
United States, an Indian tribe, or any department or
agency of the District of Columbia subject by statute
to procedures of the competitive service (as defined in
section 2102 of Title 5), or (2) a bona fide private
membership club (other than a labor organization) which
is exempt from taxation under section 501(c) of Title
26, except that during the first year after March 24,
1972, persons having fewer than twenty-five employees
(and their agents) shall not be considered employers."
42 U.S.C.A. § 2000e(b) (1981).
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summary judgment. Hence, the district court was correct in finding
that Elf was not Garcia's employer for the purposes of Title VII,
and was thus correct in granting summary judgment in favor of Elf
on that basis.
B. Locke
As noted above, Title VII liability attaches only to a
plaintiff's "employer." Section 2000e(b) defines an employer as "a
person engaged in an industry affecting commerce . . . and any
agent of such a person." 42 U.S.C. § 2000e(b) (emphasis added).
In this Circuit, we have accorded the phrase "any agent" a liberal
construction. Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990)
(citing Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert.
denied, 92 S. Ct. 2058 (1972), and Quijano v. University Federal
Credit Union, 617 F.2d 129, 131 (5th Cir. 1980)). "Under this
liberal construction, immediate supervisors are Employers when
delegated the employer's traditional rights, such as hiring and
firing." Id. (emphasis added) (citation omitted); see also
Hamilton v. Rodgers, 791 F.2d 439, 442-43 (5th Cir. 1986)
(construing the term employer to include immediate supervisors only
when they "participated in the decision-making process that forms
the basis of the discrimination"). There can be no liability under
Title VII, however, "for the actions of mere co-workers." Harvey,
913 F.2d at 228.
In the case sub judice, Garcia attempts to hold Locke liable
under Title VII, even though it is undisputed that Locke was not
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Garcia's supervisor.2 To accept this argument would require this
Court to further liberalize our construction of the term employer
to include all supervisory personnel, not just those with the
ability to hire or fire. We decline to do so. The purpose of
extending "employer" status to immediate supervisors is to hold
liable those with power over the plaintiff which exceeds that of
mere co-workers. Here, Locke was not responsible for the terms and
conditions of Garcia's employment, for his work assignment within
the company, or for hiring or firing decisions. Because we see no
basis on which to extend Title VII liability to someone in Locke's
position, summary judgment was appropriate.
C. Mowell
The district court granted summary judgment in favor of Mowell
in part because the court found that (1) Mowell took prompt action
against Locke in response to Garcia's May 3, 1991, complaint, and
(2) Mowell's actions were effective in that Locke did not bother or
attempt to harass Garcia after the warning and reprimand in May
1991.
Assuming, arguendo, that Mowell as Garcia's supervisor could
be considered an employer for the purposes of Title VII, and that
Locke's conduct toward Garcia constituted sexual harassment under
Title VII, Mowell nevertheless can be held liable for sexual
2
Although Garcia's complaint does not make clear whether he
is suing either Locke or Mowell in their individual capacity or
rather in their capacity as agents of Seagraves Ozark, we
construe Garcia's suit to be against Locke and Mowell in their
official capacity since Title VII liability does not attach to
individuals acting in their individual capacity. Grant v. Lone
Star Co., 21 F.3d 649 (5th Cir. 1994).
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harassment only if he knew or should have known of the harassment
and failed to take prompt remedial action which was "reasonably
calculated" to end the harassment. See Jones v. Flagship Int'l,
793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied, 107 S. Ct. 952
(1987). "What is appropriate remedial action will necessarily
depend on the particular facts of the caseSQthe severity and
persistence of the harassment, and the effectiveness of any initial
remedial steps." Waltman, 875 F.2d at 479 (citing DeGrace v.
Rumsfeld, 614 F.2d 796, 805 n.5 (1st Cir. 1980).
Immediately after Garcia reported Locke's behavior to Mowell,
Mowell reprimanded Locke and warned him that any further harassment
of Garcia would result in termination. Garcia contends that this
action was not "reasonably calculated to end the harassment."
Garcia's argument is unpersuasive because not only were Mowell's
actions prompt and reasonably calculated to end the harassment, but
the harassment actually ended. Hence, Garcia failed to satisfy
this prong of the Flagship test, and thus the district court was
correct in granting summary judgment on Garcia's Title VII claim
against Mowell.
II. Sexual Harassment
Finally, we held in Giddens v. Shell Oil Co., No. 92-8533 (5th
Cir. Dec. 6, 1993) (unpublished), that "[h]arassment by a male
supervisor against a male subordinate does not state a claim under
Title VII even though the harassment has sexual overtones. Title
VII addresses gender discrimination." Accord Goluszek v. Smith,
697 F. Supp. 1452, 1456 (N.D. Ill. 1988). Thus, what Locke did to
Garcia could not in any event constitute sexual harassment within
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the purview of Title VII, and hence summary judgment in favor of
all defendants was proper on this basis also.
Conclusion
For the reasons stated above, Garcia's arguments on appeal are
rejected and the district court's judgment is accordingly
AFFIRMED.
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