Revised December 3, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50362
ROSE BUTLER; ERMA GRACIA Plaintiffs-Appellants,
v.
YSLETA INDEPENDENT SCHOOL DISTRICT Defendant-Appellee
Appeals from the United States District Court for the Western District of Texas
November 16, 1998
Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
We review the district court’s entry of judgment against two
teachers suing the Ysleta Independent School District for sexual
harassment. The district court granted summary judgment against
one and a motion for judgment as a matter of law against the other
following a jury verdict in her favor. We find that there was no
hostile environment actionable under Title VII, and affirm.
I.
Rose Butler and Erma Gracia were teachers in the East Point
Elementary School when they began receiving anonymous mail at their homes. Gracia began receiving letters early in the fall semester
of 1992,and Butler began receiving similar letters sometime
thereafter. Some of the letters Gracia received suggested that she
would benefit from a romantic relationship: “You probably could use
a man in your life to calm some of that frustration down,” “A dude
a day keeps the crazes [sic] away!”, and “What You Need Is Few
[sic] good Men,” the last of which was affixed to a card containing
three personal ads from a local newspaper. Other mailings included
statements making no claims about Gracia’s romantic life, such as
“You are still trying to control everyone’s life [sic].” While some
of the letters were typewritten, others were more elaborate,
apparently composed on a personal computer and including varied
typography and occasional illustrations.
The letters Butler received were similar to Gracia’s,
including for example notes stating, “When you drive down the
street you look like you’re pissed off,” and “When are you going to
start dressing like an adult? Don’t you have a mirror at home?”
Arguably the most offensive mailings to Butler were a greeting car
containing a picture of the naked buttocks of four women with a
caption stating that “the winner is you (for being the perfect
asshole),” and a cartoon entitled “Bitch Woman.”
Gracia began to suspect that someone from work was sending her
the letters, and she brought the letters to Principal Kirk Irwin.
In turn, Irwin called in Assistant Principal Kenneth Walker and
requested that he look into the letters. Gracia later inquired of
2 Walker whether something was being done. Gracia testified that he
stated that nothing was being done. Gracia also testified that
Walker handed her the letters and stated that he thought he knew
who had written them and that he would get back to her.
In April 1993, Gracia discovered that Butler had also been
receiving anonymous mail, in addition to prank phone calls.
Sometime also that spring, both teachers, along with at least 13
others, including 11 females, were assigned different grade levels
within the school, new assignments they did not want. Gracia and
Butler began to suspect that Irwin was responsible for the letters
they received. In part, Gracia became suspicious because the
unwanted grade reassignment occurred during Teacher Appreciation
Week. She also suspected Irwin because a letter Butler received
used the phrase “winds of change,” which was apparently a favorite
phrase of the principal’s, and because the misspellings of certain
words suggested Irwin’s authorship. Gracia testified that once she
began to suspect Irwin, she withdrew from a number of
extracurricular activities and started to leave school early.
Gracia and Butler nonetheless waited until the end of the school
year to report their suspicions. They testified that they waited
because the central office had always accepted Irwin back after
periods of absence and were afraid he would return.
In late May, Butler reported the anonymous mail to the El Paso
Police Department. Detective Scott Graves began investigating,
requesting that Irwin come to the police station. Irwin came on
3 July 1 but became upset when Graves requested that he submit to
fingerprinting. Irwin refused to give his prints. Detective
Graves also met that day with two Ysleta officials, Superintendent
Anthony Trujillo and Associate Superintendent Robert Durrett, to
request copies of any fingerprints of Irwin they had on file. He
hoped to match such fingerprints to one that he lifted from a
letter that Butler had given him, but Trujillo and Durrett
indicated that they had no such fingerprints.
Trujillo and Durrett were previously unaware of the
plaintiffs’ allegations, but they had been investigating Irwin for
sending lewd faxes to male administrators. These faxes were
similar in execution and tone to the mailings Gracia and Butler
received. One, for example, stated, “On the underwear of life *
You are a poop stain,” and another stated, “Heard you were busy
making love to yourself.” One of these faxes was identical to the
mailing Butler received that urged the recipient to begin dressing
like an adult.
Durrett consulted with Mario Lewis, Ysleta’s attorney, who
then met with Graves. In an effort to obtain his fingerprints,
Lewis and Durrett enclosed materials in a plastic liner and on July
8 Lewis handed the packet to Irwin. Lewis also asked Irwin
directly if he had been harassing employees, although he may have
been inquiring only about the faxes to male employees. Graves
tested the plastic liner but found the fingerprints there
unsuitable. A warrant was issued to obtain Irwin’s fingerprints.
4 Meanwhile, the plaintiffs met with Durrett on July 13, 1993,
and again on July 19. Gracia testified that at the July 19
meeting, they requested that Durrett remove Irwin from the school
immediately, and that Durrett responded that there was a great deal
of support for Irwin at the central office. Durrett left the
matter to the police. On returning from a vacation, he called a
couple of times to check on the status of the police inquiry, but
did nothing more.
Graves, who had been sidetracked by an unrelated murder
investigation, found on August 5th that the fingerprint from the
letter Butler received matched Irwin’s. Shortly thereafter, Irwin
was suspended with pay and notified that Trujillo was contemplating
suspending him without pay and recommending his termination.
Trujillo ultimately allowed Irwin to take paid sick leave until
October 15, which was the effective date of his resignation. In
the meantime, the district appointed as interim principal Nancy
Evans, who refused to cancel Gracia’s and Butler’s grade level
reassignments.
Both teachers filed suit against Ysleta, claiming sex
discrimination under a “hostile work environment” theory pursuant
to Title VII. See 42 U.S.C. § 2000e. The defendant filed a motion
for summary judgment before Chief Judge Hudspeth, who granted it as
to Butler but denied it as to Gracia. The court found that
Gracia’s case raised a factual issue as to whether the school
district took prompt remedial action after she brought the
5 harassing letters to the attention of Irwin and Walker in December
1992, and followed up with Walker afterward. Butler, on the other
hand, notified no one in the district about her problem until July
1993. The court rejected Butler’s claims that the district had
“constructive knowledge” of the harassment on the basis of the
investigation of Irwin’s faxes to male administrators, or that
Irwin’s status as an agent for the school district made the
district liable. After July 1993, the court found, the district
took prompt and effective remedial action.
The case was subsequently transferred to Judge Furgeson, who
presided over a jury trial of Gracia’s claim. The jury rendered a
verdict in favor of Gracia in the amount of $35,000, and Gracia
filed a motion for judgment on the verdict. Ysleta, however, moved
for judgment as a matter of law notwithstanding the verdict
pursuant to Federal Rule of Civil Procedure 50(b), and the court
granted the motion. The court based its decision on three separate
grounds. First, it found that the letters Gracia received were not
so pervasive or severe as to create a hostile work environment,
emphasizing that no harassment occurred at work. Second, the court
found that the harassment did not alter a term or condition of her
employment. Third, the court found that the plaintiff failed to
establish that the defendant did not take prompt remedial action.
Separately, Gracia moved for sanctions against Ysleta or its
counsel for statements suggesting that the school district was poor
and self-insured, contrary to the judge’s decision on a motion in
6 limine barring such references. The court refused to sanction.
Gracia has appealed this refusal, and both plaintiffs appeal the
judgments entered against them.
II.
We are witnesses to the birth of a second generation of sexual
harassment law. The first generation was heralded by the D.C.
Circuit’s decision in Barnes v. Costle, 561 F.2d 983 (D.C. Cir.
1977), and the publication in 1979 by Catharine A. MacKinnon of
Sexual Harassment of Working Women. It reached maturity with
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), in which the
Supreme Court held that a hostile work environment could create a
valid Title VII claim.
At the center of the second generation of sexual harassment
law are four important cases the Supreme Court decided last Term.
See Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) (finding
an employer vicariously liable for harassment where it failed to
exercise reasonable care to prevent the harassment); Burlington
Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) (finding an
employer subject to liability for harassment by a supervisor of an
employee, but allowing the employer an affirmative defense if no
tangible job action resulted); Gebser v. Lago Vista Ind. Sch.
Dist., 118 S. Ct. 1989 (1998) (finding a school not vicariously
liable for sexual harassment by a teacher of a student, when the
school did not have notice of the harassment); Oncale v. Sundowner
7 Offshore Servs., Inc., 118 S. Ct. 998 (1998) (holding that sex
discrimination consisting of same-sex sexual harassment is
actionable).1
These rulings were preceded by substantial work in the
academy, particularly scholarly commentators who reexamined the
theoretical underpinnings of sexual harassment law. See Kathryn
Abrams, The New Jurisprudence of Sexual Harassment, 83 Cornell L.
Rev. 1169 (1998); Anita Bernstein, Treating Sexual Harassment with
Respect, 111 Harv. L. Rev. 445 (1997); Katherine M. Franke, What’s
Wrong with Sexual Harassment?, 49 Stan. L. Rev. 691, 764 (1997);
Vicki Schultz, Reconceptualizing Sexual Harassment, 107 Yale L.J.
1683 (1998). While the nuances of these writers’ approaches to
sexual harassment differ, all emphasize that sexual harassment is
discrimination based on sex, not merely workplace behavior with
sexual overtones.
This clarification and refining of sexual harassment doctrine
come at an important time. The volume of sexual harassment
complaints filed with the Equal Employment Opportunity Commission
1 These cases were decided after the district court issued its decision. In reviewing the district court’s decision in Butler’s case, we must therefore decide whether, under the Supreme Court’s refined standards, there is a genuine issue of material fact regarding an element of her case. See Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Similarly, with respect to Gracia’s claims, we must decide whether “the facts and inferences point so strongly in favor of the movant that a rational jury could not arrive at a contrary verdict,” Waymire v. Harris County, 86 F.3d 424, 427 (5th Cir. 1996), assuming that the jury had been properly instructed.
8 and state agencies has more than doubled since 1991. See
(visited Oct. 13, 1998)
(reporting 6,883 complaints lodged in 1991, and 15,889 in 1997).
To ensure the continued vitality of Title VII as a remedy for the
sexual harassment wrong, this court must separate meritorious
claims from those that identify offensive conduct but do not state
a claim under Title VII. The claims here fall in this latter
category. While the letters the plaintiffs received were
undoubtedly immature and inappropriate, and while some of the
letters had a sexual content, a consideration of all the
circumstances does not permit the conclusion that the letters
created a hostile or abusive environment at the workplace.
The touchstone of our inquiry, of course, must be the
jurisprudence of the Supreme Court and the words of the statute
itself. The Burlington Court found that “the labels quid pro quo
and hostile work environment are not controlling for purposes of
establishing employer liability.” 118 S. Ct. at 2270-71. As the
Court noted, see id. at 2264, the terms “quid pro quo” and “hostile
work environment” do not appear in the relevant statute, 42 U.S.C.
§ 2000e-2(a)(1). This section forbids an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions or privileges of employment,
because of such individual’s ... sex.”
9 The Supreme Court distinguished between two classes of cases,
those in which “a supervisor takes a tangible employment action
against the subordinate,” 118 S. Ct. at 2268, and those where “the
agency relation aids in commission of supervisor harassment which
does not culminate in a tangible employment action,” id. at 2269.
We will consider these in order.
“Tangible employment actions are the means by which the
supervisor brings the official power of the enterprise to bear on
subordinates. A tangible employment decision requires an official
act of the enterprise, a company act.” Id. at 2269. When a
supervisor takes such an action, the action by the supervisor
becomes the action of the employer. See id. In such cases, the
employer is necessarily liable. Although the Supreme Court did not
concisely define “tangible employment action,” it did note that
such an action “constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision
causing a significant change in benefits.” Id. at 2268. It also
stated that such an action “in most cases inflicts direct economic
harm.” Id. at 2269.
The plaintiffs suffered no tangible employment action as a
result of Irwin’s conduct. Even assuming that Gracia withdrew
from extracurricular activities as a result of the letters, as she
claims, this does not constitute a “change in employment status”
under the Supreme Court definition. The plaintiffs also claim that
10 Irwin’s decision to reassign them to different grade levels
constituted a tangible employment action. We need not decide,
however, whether teaching at one grade level entails “significantly
different responsibilities” from teaching at another, for two
reasons. First, the plaintiffs have offered no evidence connecting
their grade level reassignments to the letters they received, and
the reassignment of a number of other employees suggests no such
evidence exists. Second, the plaintiffs’ grade reassignments were
ultimately reversed. While Gracia complains that the interim
principal initially did not want to allow her to teach at her
customary grade level, she admitted that she was allowed to do so
after another teacher offered to trade with her. Thus, even if an
employment action was contemplated, or even favored, by the school
district, none occurred.
We thus turn to the second class of sexual harassment
violations identified by the Supreme Court. Even if no tangible
employment action is taken against an employee, an employer may be
vicariously liable “for an actionable hostile environment created
by a supervisor with immediate (or successively higher) authority
over the employee.” Id. at 2270.2
2 The employer may offer an affirmative defense consisting of two elements. Specifically, the employer must show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and “that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Id. Given our conclusion that there was no hostile environment, we need not address whether a reasonable jury could
11 The Court clarified the definition of “hostile environment,”
however, by noting that the conduct must be “severe or pervasive.”
Id. at 2264. The Court elaborated this in Faragher: “[I]n order to
be actionable under the statute, a sexually objectionable
environment must be both objectively and subjectively offensive,
one that a reasonable person would find hostile or abusive, and one
that the victim in fact did perceive to be so.” 118 S. Ct. at 2283
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)).
Whether an environment meets this standard depends on “‘all the
circumstances,’ including the ‘frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’” Id.
(quoting Harris, 510 U.S. at 23).3
A reasonable jury could determine that Gracia and Butler were
offended and even frightened by the letters that they received. A
reasonable person, however, could not perceive the work environment
itself to be hostile or abusive. The factors specifically
enumerated by the Supreme Court all militate toward this
conclusion. Cf. DeAngelis v. El Paso Mun. Police Officers Ass’n,
conclude that the employer failed to meet its affirmative defense. 3 The Court further noted that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher, 118 S. Ct. at 2283 (internal quotation marks omitted).
12 51 F.3d 591, 594-96 (5th Cir. 1995) (finding no liability after
evaluating the factors elaborated in Harris in a case involving
anonymous messages in a workplace newsletter).
First, the allegedly discriminatory conduct--consisting of
occasional letters--was infrequent. See id. at 596 (finding that
“[f]our printed derogatory references to [the plaintiff] at
irregular intervals in two and a half years do not evince
sufficient hostility toward her as a matter of law”). We do not
place undue weight on this factor, however. Even occasional
anonymous letters can be frightening, and irregular receipt of such
letters may be even more disarming than letters that arrive like
clockwork and become an expected nuisance for which the victim may
be prepared. Perhaps it is part of a stalker’s modus operandi to
surprise a victim when she least expects it. Nonetheless, the
frequency factor affords plaintiffs little or no support.
Second, the conduct was less severe than, for example, public
circulation or display of similar targeted messages would have
been. One scholar, for example, has found the circulation of
pornographic materials in the workplace problematic because it
would “mark the workplace as an arena in which masculinity is
appropriate or even constitutive.” Abrams, supra, at 1211. The
individual receipt of letters apparently coming from a single
individual does not mark the workplace at all, because it does not
demonstrate a communal effort to define who is welcome in the
workplace.
13 Third, the statements in the letters received by the
plaintiffs were also not threatening. As with the first factor,
however, we do not place much weight on this consideration, given
the anonymous nature of the correspondence. The anonymity of a
letter may itself make it threatening, even if the content is
innocuous. A threatening statement, such as “I am watching you,”
is more threatening still when the author is unknown. But here,
the anonymous notes had no threatening content whatsoever. At
worst, a reasonable person receiving such messages could be afraid
that someone dislikes her and objectifies her. We do not diminish
the hurt that comes with such knowledge, but we do not find that it
supports a finding that a workplace environment is hostile.
Fourth, the correspondence would not interfere unreasonably
with a reasonable person’s work performance. It is relevant that
the letters were received at home, and not at work. To be sure,
any unpleasant happenings in an individual’s home life may affect
work performance. A teacher may become less energetic after a
personal tragedy, but we know that does not make the work
environment itself hostile. Here, the plaintiff specifically
suspected that the writer was someone from work, and she turned out
to be correct, but it was not specifically work performance that
was affected. The workplace itself is central to the wrong of
sexual harassment. See, e.g., Abrams, supra, at 1219 (identifying
the “ultimate harm or wrong of sexual harassment” as the
perpetuation of “the workplace as a site of male control, where
14 gender hierarchy is the order of the day and masculine norms
structure the working environment”); cf. Bernstein, supra, at 495
(arguing that the central concern in a hostile work environment
case is whether the employer has treated employees with respect).
While none of the Supreme Court’s four factors thus supports
plaintiffs’ effort to state a claim, the Supreme Court’s command
that courts look to “all the circumstances” indicates that the list
is not exclusive. Our jurisprudence suggests a factor related to
but distinct from the second and fourth factors above, whether the
complained of conduct undermined the plaintiffs’ workplace
competence. See DeAngelis, supra, at 593 (“A claim for a sexually
hostile working environment is not a trivial matter. Its purpose
is to level the playing field for women who work by preventing
others from impairing their ability to compete on an equal basis
with men.”). The letters here commented on the plaintiffs’
personal lives and habits, but did not state or suggest that they
or women in general were incompetent to be teachers.
Contrary to the children’s rhyme, all insults, like sticks and
stones, can hurt, but this does not mean that all insults are
tortious. As Schultz has persuasively argued, the “core component
of [hostile work environment] harassment is conduct designed to
undermine a woman’s competence.” Schultz, supra, at 1769; see also
id. at 1762 (“[M]uch of the behavior that creates a hostile work
environment is conduct that has the purpose or effect of
undermining the perceived or actual competence of women (and some
15 men) who threaten the idealized masculinity of those who do the
work.”); cf. Franke, supra, at 772 (arguing that for conduct to
constitute sexual harassment, it must be “a practice, grounded and
undertaken in the service of hetero-patriarchal norms”).
That some of the letters plaintiffs received contained sexual
content is irrelevant. To be sure, sexualized comments or pictures
can undermine competence; for example, a cartoon suggesting that
women are incapable of teaching on account of their sex might
undermine the ability of women to teach. A plaintiff, however,
must show that implicit or explicit in the sexual content is the
message that the plaintiff is incompetent because of her sex, and
the plaintiffs cannot draw such a connection here.
That Irwin sent messages to male administrators further
indicates that the correspondence did not undermine the plaintiffs’
competence. To be sure, as the Supreme Court decided in Oncale, a
man can be guilty of sexually harassing other men, and presumably
an individual could be guilty of sexually harassing both men and
women. But Oncale was not a hostile environment case, and, under
the circumstances of this case, Irwin’s sending of offensive
materials to both men and women is evidence that the workplace
itself, while perhaps more sexually charged than necessary, was not
sexually charged in a way that made it a hostile environment for
either men or women. Indeed, the Supreme Court in Oncale
explicitly recognized that sexual content is not the Title VII
talisman:
16 We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. ‘The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’
Id. at 998 (quoting Harris, supra, at 25 (Ginsburg, J.,
concurring)). Butler and Gracia were not exposed “to
disadvantageous terms or conditions of employment,” and they are
thus not entitled to relief.
III.
We now turn to the district court’s refusal to impose
sanctions. Rulings on sanctions are subject to an abuse-of-
discretion standard. See Willy v. Coastal Corp., 855 F.2d 1160,
1172 (5th Cir. 1988). Perhaps there is a case of such
inappropriate conduct by trial counsel that a district court would
be required to impose sanctions, but this is not that case.
IV.
For the reasons above, we AFFIRM the judgments of the district
court.
AFFIRMED.