Filed: Feb. 09, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED FEBRUARY 9, 2005 February 2, 2005 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk _ No. 03-20992 _ SUSAN SEPTIMUS, Plaintiff - Appellee - Cross-Appellant, vs. THE UNIVERSITY OF HOUSTON; THE UNIVERSITY OF HOUSTON SYSTEM, Defendants - Appellants - Cross-Appellees. _ Appeal from the United States District Court for the Southern District of Texas _ Before WEINER and PRADO, Circuit Judges, and KIN
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED FEBRUARY 9, 2005 February 2, 2005 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk _ No. 03-20992 _ SUSAN SEPTIMUS, Plaintiff - Appellee - Cross-Appellant, vs. THE UNIVERSITY OF HOUSTON; THE UNIVERSITY OF HOUSTON SYSTEM, Defendants - Appellants - Cross-Appellees. _ Appeal from the United States District Court for the Southern District of Texas _ Before WEINER and PRADO, Circuit Judges, and KINK..
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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED FEBRUARY 9, 2005
February 2, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
___________________________
No. 03-20992
____________________________
SUSAN SEPTIMUS,
Plaintiff - Appellee - Cross-Appellant,
vs.
THE UNIVERSITY OF HOUSTON;
THE UNIVERSITY OF HOUSTON
SYSTEM,
Defendants - Appellants - Cross-Appellees.
_____________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_____________________________________________
Before WEINER and PRADO, Circuit Judges, and KINKEADE, District Judge.1
KINKEADE, District Judge:
Susan Septimus (“Septimus”) filed claims for gender discrimination, retaliation, and hostile
work environment against the University of Houston and the University of Houston System
(collectively, “the University”). Septimus’s discrimination and hostile work environment claims and
one of her retaliation claims were dismissed on summary judgment. Because Septimus failed to
1
District Judge for the Northern District of Texas, sitting by designation.
1
establish a genuine issue of material fact regarding the pretext elements of her gender discrimination
claim and one of her retaliation claims, summary judgment on these claims was proper. Septimus’s
hostile work environment claim was also properly dismissed, because she failed to set forth sufficient
evidence that the alleged harassment was severe or pervasive. Septimus’s remaining retaliation claims
proceeded to trial. With regard to these claims, the court holds that they were subject to a “but for”
causation standard rather than the “motivating factor” standard used in the trial court’s charge to the
jury. The trial court’s grant of partial summary judgment is AFFIRMED, the judgment on Septimus’s
two retaliation claims that went to trial is REVERSED due to the erroneous jury charge, and the case
is REMANDED for further proceedings consistent with this opinion.
I. Facts and Proceedings
Septimus was an Assistant General Counsel for the University who handled business and
transactional matters. In December 1997, after the resignation of Associate General Counsel Bonnie
Weisman, the University posted an open Associate General Counsel (“AGC”) position for litigation
and employment matters. In early 1998, AGC Joseph Williams (who held a “business counsel”
position) also resigned from the
University, which left open two AGC positions. Brian Nelson, an outside candidate, was interviewed
for the litigation and employment AGC position on January 9, 1998.
Later that day, Sept imus told the University’s General Counsel Dennis Duffy that she was
interested in being promoted to the AGC position responsible for business matters. Duffy responded
that he would not consider her for promotion because he want ed someone with management
experience. Duffy further told Septimus that she had not “stepped up to the plate” in her current
position to assume management responsibilities. Nelson was ultimately hired by Duffy as an AGC.
2
Although the University contends that Nelson was hired for the employment and litigation counsel
position formerly held by Weisman, the record reflects that Nelson actually handled business and
contractual matters. Septimus admits she was not seeking the employment and litigation counsel
position, but she claims that Nelson was actually hired for the business counsel position vacated by
Williams. She thus contends that Duffy’s decision to hire Nelson instead of her for that position was
rooted in gender discrimination.
On March 10, 1998, Duffy spent two hours in Septimus’s office “haranguing” her while they
discussed work matters. Nelson watched and Septimus sobbed uncontrollably. Nelson described this
incident as intimidating and inappropriate. Septimus filed an internal discrimination complaint with
the University later that month. She also filed an EEOC charge of discrimination regarding the
denied promotion. Septimus further alleged in her EEOC charge that Duffy created a hostile work
environment.
Because other female employees in the Office of the General Counsel (“OGC”) had also
complained about Duffy, the University engaged attorney Deborah McElvaney to investigate. In her
report dated April 16, 1998, McElvaney concluded there was sufficient evidence that Duffy had
discriminated against Septimus in hiring Nelson and that he created a hostile work environment. She
also thought that the evidence did not support Septimus’s claim that Duffy retaliated against her for
filing her internal complaint of discrimination and for her participation in the investigation.
After McElvaney provided her report to University President/System Chancellor Art Smith,
he formed a committee of three University administrators to review McElvaney’s work. Ultimately,
the committee decided that none of Septimus’s complaints had merit and denied her internal grievance
on all of her claims – gender discrimination, hostile work environment and retaliation.
3
On May 29, 1998, Smith offered Septimus the choice of remaining in the OGC (supervised
by Duffy) or transferring to the position of Director of Contracts Administration (“DCA”), where she
would work under a different management group. Smith’s offer to move Septimus to contracts
administration was conditioned on the requirement that she discontinue practicing law on behalf of
the University. Smith’s policy was that employees who did not report to the OGC could not practice
law. Additionally, Smith conditioned the transfer offer on Septimus’s providing a release of her
claims against the University. Septimus initially refused the transfer, but eventually accepted it after
Smith dropped the requirement that she sign a release.
Septimus began her new job as DCA in July 1998, reporting to John Martin. In her new
position, Septimus was required to work with the OGC on any legal issues, relying upon the expertise
and judgment of the lawyers in the OGC. She was not permitted to negotiate, modify or draft
contracts.
In early March 1999, Ron Miller, another employee who reported to Martin, announced his
retirement. Miller’s title was Director of Procurement and Campus Services. Prior to leaving, Miller
suggested to Martin that Septimus serve as his interim replacement. Despite that recommendation,
Sept imus was denied the interim position, because Martin’s supervisor Randy Harris decided to
combine Miller’s former position with that of Ann Lamar. That change caused no additional salary
expense since Lamar was already earning the salary of an interim division director. Lamar was
appointed to the retitled position of Interim Execut ive Director of Procurement and Auxiliary
Services. Septimus views these events as a promotion she received, but that was later rescinded, and
claims that the University retaliated against her by awarding the position to Lamar instead. After
Lamar’s appointment to Interim Director, she became Septimus’s supervisor and Septimus no longer
4
reported directly to Martin.
Although Septimus was then reporting to Lamar, Martin criticized her in late 1999 for
suggesting revisions to contracts without coordinating her advice with that of the OGC. Septimus
was upset at the criticism and resigned from the University in December 1999. After Septimus left,
her responsibilities were given to Nelson in addition to his duties as an AGC. In this new role, Nelson
continued reporting to the OGC.
Septimus sued the University in September 2000, alleging 1) gender discrimination related
to the hiring of Nelson instead of her for the AGC position; 2) retaliation based upon her transfer to
the DCA position; 3) retaliation based upon being denied the Interim Director position; 4) hostile
work environment; and 5) retaliation through constructive discharge. The district court granted
partial summary judgment in favor of the University on Septimus’s claims for gender discrimination,
hostile work environment, and the retaliation claim related to the Interim Director position awarded
to Lamar. On Septimus’s claims of retaliatory transfer and constructive discharge, the district court
found that genuine issues of material fact existed in the summary judgment record, and denied
summary judgment.
The case proceeded to trial on the remaining retaliation claims related to her transfer to the
DCA position and her alleged constructive discharge. The jury found for Septimus on these claims
and awarded damages. The University now appeals the judgment entered for Septimus, and Septimus
cross-appeals the district court’s grant of partial summary judgment.
II. Discussion
5
A. Challenged Jury Instructions
The University appeals the jury’s verdict on these claims, arguing that the district court
incorrectly instructed the jury regarding the applicable standard of proof for Septimus’s retaliation
claims.
1. Standard of Review
The University did not object to the jury instructions in the district court, and its position was
not made clear to the court in some other manner. Accordingly, this court’s consideration of the
issue is limited to plain error review.2 For an appellant to prevail under the plain error standard, it
must show 1) that an error occurred; 2) that the error was plain, which means clear or obvious; 3)
the plain error must affect substantial rights; and 4) not correcting the error would seriously impact
the fairness, integrity, or public reputation of judicial proceedings.3 The plain error exception is
designed to prevent a miscarriage of justice where the error is clear under current law.4
In determining whether a particular jury instruction was erroneous, we consider the jury
charge as a whole.5 “An inadequate instruction merits reversal when ‘the charge as a whole leaves
us with the substantial and ineradicable doubt whether the jury has been properly guided in its
2
Industrias Magromer Cueros y Pieles v. Louisiana Bayou Furs, Inc., 293 F.3d 912, 922 (5th Cir.
2002); Russell v. Plano Bank & Trust,
130 F.3d 715, 721 (5th Cir. 1997) cert. denied,
523 U.S. 1120,
118
S. Ct. 1801,
140 L. Ed. 2d 941 (1998).
3
Russell, 130 F.3d at 721.
4
Taita Chemical Co., Ltd. v. Westlake Styrene, LP, 351 F.3d 663, 668 (5th Cir. 2003), citing
Johnson v. Helmerich & Payne, Inc.,
892 F.2d 422, 424 (5th Cir. 1990).
5
Russell, 130 F.3d at 721; Turnage v. General Elec. Co.,
953 F.2d 206, 211-112 (5th Cir. 1992).
6
deliberations.’”6
2. Legal Standard for Title VII Retaliation Claims
The parties agree that this case was litigated and tried as a “pretext” (rather than “mixed-
motive”) retaliation case.7 Under the pretext framework, after the employee demonstrates a prima
facie case of ret aliation and the employer carries its burden by stating a legitimate non-retaliatory
reason for the employment action, the burden falls to the employee to establish that the employer’s
permissible reason is actually a pretext for retaliation.8
Here, the parties disagree as to the proper standard of proof for the final portion of the above
framework. The University seeks plain error review of the district court’s use of the phrase
“motivating factor” instead of the “but-for” causation standard in submitting Septimus’s retaliation
claims to the jury. Conversely, Septimus contends that the “motivating factor” language employed
by the district court was legally proper, and therefore the jury’s verdict on these claims should not
be disturbed.
Septimus relies primarily on Fabela v. Socorro Indep. School Dist.9 to support her argument
that the district court’s “motivating factor” language was appropriate for a retaliation claim. In that
case the discharged employee presented direct evidence of retaliation and proceeded upon a mixed-
6
Turnage, 953 F.2d at 211-12, quoting Bommarito v. Penrod Drilling Corp.,
929 F.2d 186, 189
th
(5 Cir. 1991).
7
Accordingly, the court need not consider whether the Supreme Court’s recent decision in Desert
Palace, Inc. v. Costa, 539 U.S. 90,
123 S. Ct. 2148,
156 L. Ed. 2d 84 (2003), or this court’s decision in
Rachid v. Jack in the Box, Inc.,
376 F.3d 305 (5th Cir. 2004) will affect this case.
8
Pineda v. United Parcel Service, Inc., 360 F.3d 483, 487 (5th Cir. 2004); Gee v. Principi,
289
F.3d 342, 345 (5th Cir. 2002).
9
329 F.3d 409 (5th Cir. 2003).
7
motive theory as was then pro vided for under the framework set out in Price Waterhouse v.
Hopkins.10 This court noted in Fabela that it is unusual to have direct evidence of retaliatory intent,
and that in cases based on circumstantial evidence it has “long recognized the well-trod path by which
a plaintiff may demonstrate retaliatory intent through the use of circumstantial evidence and the famed
McDonnell Douglas burden-shifting framework.”11 Because this is a circumstantial evidence
“pretext” case, the standard of proof applied in Fabela and other mixed-motive cases is not
controlling here.
The McDonnell Douglas evidentiary framework applies to Title VII retaliation claims brought
under a pretext theory.12 Under that framework, the employee’s ultimate burden is to prove that the
employer’s stated reason for the adverse action was merely a pretext for the real, retaliatory
purpose.13 The proper standard of proof on the causation element of a Title VII retaliation claim is
that the adverse employment action taken against the plaintiff would not have occurred “but for” her
protected conduct.14 This court has “consistently held that in retaliation cases where the defendant
has proffered a nondiscriminatory purpose for the adverse employment action the plaintiff has the
10
Fabela, 329 F.3d at 415, citing Price Waterhouse,
490 U.S. 228,
109 S. Ct. 1775,
104 L. Ed. 2d
268 (1988); and Fierros v. Texas Dept. Of Health,
274 F.3d 187, 192 (5th Cir. 2001).
11
Id., citing Montemayor v. City of San Antonio,
276 F.3d 687 (5th Cir. 2001); Portis v. First
Natl. Bank,
34 F.3d 325 (5th Cir. 1994) and McDonnell Douglas Corp. v. Green,
411 U.S. 792,
93 S. Ct.
1817,
36 L. Ed. 2d 668 (1973).
12
Montemayor, 276 F.3d at 692;
Portis, 34 F.3d at 328.
13
Pineda, 360 F.3d at 487; Gee, 289 F3d at 345.
14
Pineda, 360 F.3d at 487.
8
burden of proving that ‘but for’ the discriminatory purpose he would not have been terminated.”15
Moreover, we have recently stated that the motivating factor test is “less stringent,” implying that
standard would require a lesser burden of proof.16 We hold that the district court erred when it used
the term “motivating factor” to instruct the jury in this case.
Because the University did not timely raise this issue at trial , the court must determine
whether this error requires reversal under the plain error standard. This court has consistently
required a “but for” standard for proving causation on a Title VII retaliation claim brought under the
pretext framework.17 Thus, the disputed jury instruction amounts to plain error that should have been
clear or obvious. Even when the jury instructions are viewed in their entirety, the substitution of the
phrase “motivating factor” for “but for” causation causes us to doubt substantially whether the jury
was properly guided in its deliberations. Septimus was held to a lower standard in proving the
causation element of her retaliation claims – the ultimate question in this case – and therefore
substantial rights of the University were prejudiced. Because the jury was improperly instructed, the
outcome of this case may have been affected. Therefore, failing to correct this fundamental error
could impact the fairness o f the judicial process in this case and could result in a miscarriage of
justice.
15
Pineda, 360 F.3d at 487; see also
Montemayor, 276 F.3d at 692 (plaintiff “had the burden of
proving that her termination from the Fire Department would not have occurred ‘but for’ her protected
conduct); Medina v. Ramsey Steel Co., Inc.,
238 F.3d 674, 685 (5th Cir. 2001) (plaintiff “must
demonstrate that he would not have been terminated ‘but for’ engaging in the protected activity.”); Long v.
Eastfield College,
88 F.3d 300, 305 n.4 (5th Cir. 1996) (“[t]he ultimate determination in an unlawful
retaliation case is whether the conduct protected by Title VII was a ‘but for’ cause of the adverse
employment decision”).
16
Pineda, 360 F.3d at 488 and 490 n.6.
17
Pineda, 360 F.3d at 487, citing
Medina, 238 F.3d at 685, and
Long, 88 F.3d at 305 n.4.
9
B. Claims Dismissed on Summary Judgment
Septimus cross-appeals the district court’s entry of summary judgment on her gender
discrimination claim, one of her retaliation claims, and her hostile work environment claim.
1. Standard of Review
A district court’s grant of summary judgment is reviewed de novo, applying the same standard
as the district court.18 Summary judgment is appro priate when, viewing the evidence and all
justifiable inferences in the light most favorable to the non-moving party, there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.19 The appropriate
inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.”20
2. Denial of Promotion - Position Awarded to Brian Nelson
To survive summary judgment, Septimus must satisfy the burden shifting test found in
McDonnell Douglas,21 and recently reaffirmed in Reeves v. Sanderson Plumbing Prods. Inc.22 Under
this test, the plaintiff must first establish a prima facie case of discrimination, and if she successfully
does so, the defendant shall respond by setting forth its legitimate, non-discriminatory reason for its
18
Travelers Cas. & Sur. Co. of Am. v. Baptist Health Sys., 313 F.3d 295, 297 (5th Cir. 2002).
19
Fed. R. Civ. P. 56(c); Hunt v. Cromartie, 526 U.S. 541, 549,
119 S. Ct. 28,
141 L. Ed. 2d 788
(1999).
20
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986).
21
411 U.S.792, 93 S. Ct. 1817.
22
530 U.S. 133,
120 S. Ct. 2097,
147 L. Ed. 2d 105 (2000).
10
decision.23 If the defendant produces a legitimate reason, any presumption of discrimination raised
by the plaintiff’s prima facie case vanishes.24 However, the plaintiff may still avoid summary
judgment if she demonstrates a genuine issue of material fact whether the legitimate reasons proffered
by the defendant are not its true reasons, but instead are a pretext for discrimination.25
Septimus may establish her prima facie case by sho wing that she 1) is a member of a
protected class; 2) was qualified for her position; 3) was subjected to an adverse employment action;
and 4) was replaced by someone outside the protected class, or that other similarly situated persons
were treated more favorably.26
The summary judgment record shows that in January 1998, the University posted an opening
for an AGC to handle employment and litigation matters. Although Septimus admits she was not
qualified for that position, she expressed interest to Duffy in being promoted to Williams’s former
AGC position, for which she was qualified. Earlier that day, before Septimus expressed interest in
being promoted, Duffy had interviewed Nelson. Septimus claims that although Nelson was officially
hired for the litigation position, for which she admits she was unqualified, he was actually hired, over
her, for the business counsel position she sought. Accepting these facts as true, we presume that
Septimus sufficiently established her prima facie case. Continuing with the applicable burden shifting
analysis, the University has set forth a legitimate, non-discriminatory reason for its actions: Septimus
23
Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; Okoye v. The University of Texas Houston Health
Science Center,
245 F.3d 507, 512 (5th Cir. 2001).
24
Okoye, 245 F.3d at 512.
25
Id.
26
Id. at 512-13; Shackelford v. Deloitte & Touche, LLP,
190 F.3d 398, 404 (5th Cir. 1999).
11
was less qualified than Nelson for the litigation counsel position.
Finally, we agree with the district court’s conclusion that Septimus did not raise a genuine
issue of material fact regarding pretext. There is no dispute that she was not qualified for the
litigation counsel position for which the University says it hired Nelson. Furthermore, even assuming,
as Septimus asserts, that the University actually hired Nelson for a business counsel position similar
to the position Septimus wanted, she admits that when she raised the issue with Duffy, he stated that
because she had not “stepped up” to assume management responsibilities, she would not be promoted
to such a position.
Septimus offered no evidence to contest the reasons Duffy gave to support his decision. The
mere fact that Nelson was hired instead of Septimus does not sufficiently raise a material fact issue
concerning discriminatory intent by Duffy. Septimus’s belief that Duffy’s decision was motivated by
discrimination, however genuinely held, is not sufficient evidence of pretext.27 Septimus’s reliance
on McElvaney’s conclusion that she suffered gender discrimination with respect to the hiring of
Nelson and the EEOC’s determination letter containing a “reasonable cause” finding in her favor as
evidence of discrimination also do not permit her to proceed past the summary judgment stage.
Septimus did not dispute that she was unqualified for the litigation counsel position, and she proffered
no evidence to contest the validity of Duffy’s statement that she would not be promoted because she
lacked management experience. Therefore, upon review of the relevant underlying facts related to
this incident, the court concludes that summary judgment was appropriately entered because Septimus
failed to set forth sufficient evidence of pretext.
27
Roberson v. Alltel Information Svcs., 373 F.3d 647, 654 (5th Cir. 2004); Rutherford v. Harris
County, Texas,
197 F.3d 173, 180 n.6 (5th Cir. 1999).
12
3. Rescinded Interim Promotion - Position Awarded to Ann Lamar
Septimus contends that the University retaliated against her because she did not receive the
Interim Director position upon Miller’s retirement in March 1999. As stated above with respect to
her other retaliation claims, Septimus must first demonstrate a prima facie case of retaliation. The
elements of her prima facie evidentiary showing are 1) that she engaged in a protected activity; 2)
that an adverse employment action occurred; and 3) that a causal link existed between the protected
activity and the adverse action.28 If Septimus successfully establishes her prima facie case, the
burden then shifts to the University to state a legitimate non-retaliatory reason for its action. At this
point, any presumption of retaliation drops from the case, and Septimus must show that the
University’s stated reason is actually a pretext for retaliation.29
The record shows that Miller recommended to his supervisor, Martin, that Septimus replace
him on an interim basis, and the record further shows that Miller announced Septimus as his interim
replacement. However, there is no evidence that Martin was the individual who actually had
authority to appoint Septimus to the interim post. When Martin sought Harris’s approval for the
appointment, Harris instead decided to reorganize the department and appoint Lamar. On these facts,
the University argues that Septimus never received the interim promotion and therefore the University
never revoked it, leaving her without the adverse employment action that is needed to establish her
prima facie case. Ho wever, Septimus testified that Martin told her Harris had approved the
promotion. Therefore, we indulge this inference in Septimus’s favor and assume that she did receive
the interim promotion and that it was later revoked.
28
Pineda, 360 F.3d at 487;
Gee, 289 F.3d at 345.
29
Pineda, 360 F.3d at 487.
13
Septimus has not raised a material fact issue regarding whether Harris had a retaliatory motive
when he ultimately decided to deny her the interim promotion. To support this contention, she
provides proof that Harris was aware of her discrimination complaints and that the denial of the
interim promotion occurred only ten months after her March 1998 internal complaint, while her
EEOC charge was pending. Additionally, Septimus cites to “ongoing harassment” by Duffy and
speculation by Miller that Duffy was somehow involved as proof of retaliatory intent. Septimus has
not claimed that Harris, the decision-maker, harassed her. All of this evidence amounts to mere
speculation that Harris retaliated against her by awarding the position to Lamar instead. The district
court properly entered summary judgment on this claim.
4. Hostile Work Environment
Finally, Septimus appeals the dismissal of her hostile work environment claim on summary
judgment. The plaintiff in a hostile work environment claim must establish that 1) she belongs to a
protected class; 2) she was subjected to unwelcome sexual harassment; 3) the harassment was based
on sex; 4) the harassment affected a term, condition or privilege of employment; and 5) the employer
knew or should have known of the harassment and failed to take remedial action.30 Conduct
sufficient to create a hostile working environment must be severe or pervasive.31 To be actionable,
the alleged harassment must have created an environment that a reasonable person would find hostile
30
Green v. Adminstrators of the Tulane Educational Fund, 284 F.3d 642, 655 (5th Cir. 2002);
Woods v. Delta Beverage Group, Inc.,
274 F.3d 295, 298-99 (5th Cir. 2001).
31
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752,
118 S. Ct. 2257,
141 L. Ed. 2d 633 (1998).
14
or abusive.32 Whether an environment is hostile or abusive depends on the totality of the
circumstances, including factors such as the frequency of the conduct, its severity, the degree to
which the conduct is physically threatening or humiliating, and the degree to which the conduct
unreasonably interferes with an employee’s work performance.33
Septimus argues that the district court incorrectly found that there was no genuine issue of
material fact as to whether the harassment alleged was sufficiently pervasive to establish a claim of
hostile work environment under Title VII. Specifically, Septimus cites to evidence of the two-hour
“harangue” in her office, which frightened her and made her feel useless and incompetent. Septimus
also presents evidence that Duffy once questioned her about a presentation in a “mocking tone,” and
refers to a comment by Duffy that she “was like a needy old girlfriend.” All of Septimus’s other
summary judgment evidence on this claim pertained to other women in the OGC, not Septimus, and
therefore is not relevant.
Much of the complained-of conduct was, as the district court noted, “boorish and offensive.”34
However, Septimus did not personally experience most (if not all) of the conduct complained of by
the other women. As to conduct that was directed at her, Septimus relies on the “harangue” incident,
the “mocking tone” directed at her on one occasion, and Duffy’s “needy old girlfriend” remark, with
nothing more. The district court properly found that these incidents were collectively insufficient to
establish that Duffy’s harassment was severe or pervasive enough to make her working environment
objectively hostile or abusive. Accordingly, this claim was correctly dismissed on summary judgment.
32
Woods, 274 F.3d at 299.
33
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22,
114 S. Ct. 367,
126 L. Ed. 2d 295 (1993).
34
Shepard v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999).
15
III. Conclusion
Septimus has not raised a genuine issue of material fact that the University’s proffered reasons
for denying her an AGC position and the interim promotion into Miller’s former position were,
respectively, pretexts for gender discrimination or retaliation. She has also failed to raise a genuine
issue of material fact whether Duffy’s alleged harassment of her was severe or pervasive. Therefore,
the district court’s judgment on these claims is AFFIRMED. The court further holds that with regard
to Septimus’s retaliation claims related to her transfer to the DCA position and her alleged
constructive discharge, the jury should have been instructed to apply a “but for” causation standard.
Accordingly, the district court’s judgment on these claims is REVERSED, and the case is hereby
REMANDED for further proceedings consistent with this opinion. The remaining issues raised in
this appeal are related to the portion of the trial court’s judgment that we have reversed. Therefore,
because we have reversed the district court’s judgment on these claims, we need not reach any of the
additional issues raised by this appeal. AFFIRMED in part; REVERSED and REMANDED in part.
16
