Septimus v. Univ. of Houston , 399 F.3d 601 (5th Cir. 2005)
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United States Court of Appeals
FILED
February 2, 2005
REVISED FEBRUARY 9, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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United States Court of Appeals
Fifth Circuit
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FILED
February 2, 2005
Charles R. Fulbruge III
Clerk
REVISED FEBRUARY 9, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
No. 03-20992
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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
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, Septimus 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 wanted 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. 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.
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, Septimus 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
Executive 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 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
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 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 retaliation 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- motive
theory as was then provided 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 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 of
the judicial process in this case and could result in a miscarriage of justice.
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 appropriate 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 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 showing 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 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.
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. However, 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.
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
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.
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.
1 District Judge for the Northern District of Texas, sitting by designation.
2 Industrias Magromer Cueros y Pieles v. Louisiana Bayou Furs, Inc., 293 F.3d
912, 922 (5 th Cir. 2002); Russell v. Plano Bank & Trust, 130 F.3d 715, 721 (5
th 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 (5 th
Cir. 2003), citing Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 424 (5 th
Cir. 1990).
5 Russell, 130 F.3d at 721; Turnage v. General Elec. Co., 953 F.2d 206, 211-
112 (5 th Cir. 1992).
6 Turnage, 953 F.2d at 211-12, quoting Bommarito v. Penrod Drilling Corp.,
929 F.2d 186, 189 (5 th 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 (5 th Cir. 2004) will affect this case.
8 Pineda v. United Parcel Service, Inc., 360 F.3d 483, 487 (5 th Cir. 2004); Gee
v. Principi, 289 F.3d 342, 345 (5 th Cir. 2002).
9 329 F.3d 409 (5 th Cir. 2003).
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 (5 th Cir. 2001).
11 Id., citing Montemayor v. City of San Antonio, 276 F.3d 687 (5 th Cir. 2001);
Portis v. First Natl. Bank, 34 F.3d 325 (5 th 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.
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 (5 th 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 (5 th 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.
18 Travelers Cas. & Sur. Co. of Am. v. Baptist Health Sys., 313 F.3d 295, 297
(5 th 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).
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 (5 th 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 (5
th Cir. 1999).
27 Roberson v. Alltel Information Svcs., 373 F.3d 647, 654 (5 th Cir. 2004);
Rutherford v. Harris County, Texas, 197 F.3d 173, 180 n.6 (5 th Cir. 1999).
28 Pineda, 360 F.3d at 487; Gee, 289 F.3d at 345.
29 Pineda, 360 F.3d at 487.
30 Green v. Adminstrators of the Tulane Educational Fund, 284 F.3d 642, 655
(5 th Cir. 2002); Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298-99
(5 th Cir. 2001).
31 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S. Ct. 2257, 141 L.
Ed.2d 633 (1998).
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 (5 th Cir.
1999).
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