St Germaine v. Amoco Production Co

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 22, 2001
• Docket: 00-31290
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31290 Summary Calendar

DONNA ST. GERMAINE,

Plaintiff-Appellant,

versus

AMOCO PRODUCTION CO. ET AL.,

Defendants,

AMOCO PRODUCTION CO.,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 99-CV-300 -------------------- June 21, 2001

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

Donna St. Germaine appeals from the dismissal of her sexual

harassment claim following the district court’s grant of summary

judgment in favor of Amoco. We review the district court’s

decision de novo. E.g., Skotak v. Tenneco Resins, Inc., 953 F.2d

909, 912 (5th Cir. 1992).

St. Germaine has failed to establish a genuine issue of

material fact concerning whether Amoco was her employer. See

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-31290 -2-

Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 256 (1986)(party opposing properly supported motion for

summary judgment must present facts showing there is a genuine

issue for trial).

St. Germaine has also failed to present material facts

showing that genuine issues exist whether Amoco was negligent in

its training and supervision of LeBlanc and whether Amoco had

knowledge of other alleged harassment involving LeBlanc prior to

its investigation of St. Germaine’s complaint.

We do not reach St. Germaine’s argument, raised for the

first time on appeal, that Title VII jurisprudence on “joint

employment” is applicable to her case. “‘Th[is] Court will not

allow a party to raise an issue for the first time on appeal

merely because a party believes that he might prevail if given

the opportunity to try a case again on a different theory.’"

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999), cert. denied, 528 U.S. 1138 (2000)(quoting Forbush v. J.C.

Penney Co., 98 F.3d 817, 822 (5th Cir. 1996)). St. Germaine did

not assert this theory in the district court and cannot present

this issue on appeal.

Even if we were to find that Amoco is St. Germaine’s

employer as defined by La. Rev. Stat. Ann. 23:301 et seq.,

liability attaches to the employer for sexual harassment only

where it is shown that the alleged conduct occurred during the

course and scope of the harasser’s employment. See Alphonse v.

Omni Hotels Mgmt. Corp., 643 So. 2d 836, 840 (La. Ct. App. 1994).

St. Germaine did not appeal the district court’s determination No. 00-31290 -3-

that LeBlanc was not in the course and scope of his employment at

the time of the alleged assault. “[C]ontentions not briefed are

waived and will not be considered on appeal.” Trust Co. of La.

v. N.N.P., Inc., 104 F.3d 1478, 1485 (5th Cir. 1997).

St. Germaine’s argument that her claim for negligent

infliction of emotional distress is still viable is meritless

because the district court’s ruling that Amoco was not

vicariously liable relieves Amoco of all liability for LeBlanc’s

conduct. LeBlanc’s denial of the alleged assault does not create

a genuine issue of material fact for purposes of Amoco’s summary

judgment. Resolution of St. Germaine’s claim against Amoco via

summary judgment procedure was appropriate.

AFFIRMED.