                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                       REVISED DECEMBER 7, 2004
                IN THE UNITED STATES COURT OF APPEALS            November 11, 2004
                         FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk
                             No. 04-60028
                           Summary Calendar


JANE S. THOMPSON,

                                                   Plaintiff - Appellant
versus


NAPHCARE, INC. AND RONALD D. ISAAC,

                                                   Defendants - Appellees


            Appeal from the United States District Court
              for the Southern District of Mississippi
                        (No. 1:02-CV-18-GRo)



Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

         Plaintiff-Appellant    Jane   Thompson,    a   Registered    Nurse

(“RN”), appeals the district court’s summary judgment dismissal of

her Title VII claims against her former employer, Defendant-

Appellee    Naphcare,   Inc.   (“Naphcare”),   a    healthcare     services

provider.   She also appeals the district court’s grant of a motion

filed by her former supervisor at Naphcare, Defendant-Appellee




     *
       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this opinion should not be published and is not precedent except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.
Ronald D. Isaac, to dismiss for failure to state a claim under

state law.1   We affirm.

                      I. FACTS AND PROCEEDINGS

     Plaintiff-Appellant Jane Thompson worked for Naphcare as an RN

supervisor at the Harrison County Adult Detention facility in

Gulfport, Mississippi, for a total of three months and two weeks,

viz., from June 6 to September 21, 2000.      Isaac went to work at

Naphcare about a month after Thompson, on July 3, 2000, in a

supervisory   role   over   Thompson.   She    contends   that   Isaac

immediately began a pattern of harassment, consisting of unwelcome

sexual comments and touching.

     Thompson specified five such incidents.     First, she testified

in her deposition that on July 3, 2000, while Isaac was introducing

himself to the staff, he asked her about her age, then commented

that she “certainly didn’t look” her age.        Thompson also stated

that, while discussing with Isaac her forthcoming vacation to the

Caribbean, he commented that she had a figure that most college

girls would envy and that she should leave her husband behind and

take Isaac along instead.       She further asserted that, without

invitation, Isaac twice touched her in an intrusive manner, viz.,

rubbing her shoulders, once when she was standing in a doorway and

again while she was sitting at a computer.         Finally, Thompson


     1
       The district court also dismissed Thompson’s state law
claims against Naphcare and her Title VII claims against Isaac, but
she has not appealed these rulings.

                                  2
averred that Isaac informed her during a private conference in his

office near the end of August that it was his responsibility to

protect her from other personnel and that if she were “not so

wrapped up with” her husband, she could see what Isaac would do for

her.

       Thompson   also   testified   that,   in    late   August    and   early

September, Isaac’s attitude toward her changed; that he began

berating her in an unprofessional manner for negligible mistakes.

She added that, on or about August 30, 2000, Isaac stated that

Thompson was unprofessional and threatened to replace her unless

she improved.       She contends that, at this meeting, Isaac told

Thompson that she, an RN supervisor, would thereafter be supervised

by Geraldine Wells, a Licensed Practical Nurse (“LPN”).             (Thompson

concedes, however, that Isaac had appointed Wells as “clinic

supervisor” on his first day in the office; and in his affidavit,

Isaac averred that he expected Wells, who had experience working in

correctional facilities, to provide coordination and guidance to

other staff members, including RNs, on matters of security, clinic

flow, documentation, and referral matters.) Thompson complained to

Naphcare    about    this   arrangement   on      September   13,   2000    and

thereafter called the Mississippi State Board of Nursing to report

the situation.      (The Board did not contact Naphcare or investigate

until after Thompson had resigned.)

       Thompson also contended that, on September 1, 2000, Isaac

reprimanded her for taking too much time on a visit to the Juvenile

                                     3
Detention Facility, screaming at her and accusing her of “stealing

company time.” According to Thompson, Isaac followed up by issuing

a written warning to her, which was later revised to remove Isaac’s

charge of “theft of company time.”      Thompson also stated that, on

the same day, Isaac screamed at her for continuing to examine a

patient after she had already clocked-out for the day.       Isaac also

contacted Naphcare human resources on September 4, 2000 to discuss

extending Thompson’s probationary period because of “performance

issues.”    He discussed this extension in a private meeting with

Thompson and another co-worker on September 6, 2000, but neither he

nor Thompson produced testimony from the co-worker who allegedly

witnessed this exchange. At this same meeting, Isaac gave Thompson

a set of guidelines delineating areas in which she had to improve,

including   establishing   priorities,     completing   paperwork,   and

training on specified equipment.       Thompson said that Isaac called

her “incompetent” during this meeting.

     Thompson consulted an attorney on August 30, 2000 concerning

Isaac’s allegedly discriminatory behavior. Naphcare first received

notice of Thompson’s accusations on September 5, 2000, when Isaac’s

supervisor, Bob Malone, received a letter from Thompson’s attorney.

Two days later, Naphcare dispatched Ashley Clark, its director of

human resources, and Vance Alexander, its in-house counsel, to the

Harrison County worksite to investigate the charges that Thompson’s

lawyer had leveled.   Clark and Alexander interviewed individuals

identified by Thompson as witnesses to the alleged events but were

                                   4
unable to substantiate the charges raised in the letter from her

lawyer.     In fact, the Naphcare employees who were interviewed by

Clark and Alexander denied witnessing any inappropriate behavior on

the part of Isaac.          An employee who witnessed the conversation

about Thompson’s Caribbean vacation recalled that Isaac mentioned

wanting to go on vacation, but did not find Isaac’s comments to be

inappropriate or offensive. LPN Wells was also present during some

of the allegedly unseemly conversations: Wells denied witnessing

anything     inappropriate        between       Isaac    and     Thompson.         The

investigators      also     noted   that      the    office     was    much    like   a

“fishbowl,” in that glass walls enclosed three walls of Isaac’s

office, and only a half wall separated the nurses’ station from the

main administrative area.

      Despite the absence of verification of the charges against

Isaac, the investigators instructed him not to communicate with

Thompson without other employees being present.                  After Naphcare’s

investigators left, Isaac approached Thompson to apologize and to

try   to   explain    his     position.         Thompson       found   this     action

inappropriate and complained to Clark, who told Isaac’s supervisor,

Malone, to instruct Isaac not to discuss the matter further with

Thompson.

      On September 13, the day Isaac left on vacation and the day

preceding    her   own    final     day    of   work    at     Naphcare,      Thompson

complained to Clark and Malone that her work had been too closely

scrutinized by LPN Wells that day.                  Thompson also reported that

                                          5
Isaac had telephoned the office that day and, after speaking with

Wells, had accused Thompson of refusing to do her work.

     Following the September 7 investigation, Thompson worked until

September 14, took paid leave for health reasons September 18-20,

and resigned on September 21.            She thus worked a total of only

seven days after the investigation.          Other than Isaac’s unwelcome

apology and the September 13 phone conversation, Thompson did not

claim to have had any contact with him from the time of Naphcare’s

September 7 investigation until her resignation on September 21.

She did assert that it was at Isaac’s direction that LPN Wells’s

supervision    became   onerous    and    overly    critical     following   the

investigation.

     On September 21, after Naphcare informed Thompson that it

could not substantiate her allegations, she tendered her letter of

resignation.      In    it   she   stated    that   she    was   resigning    on

instructions from her doctor.       Thompson now insists, however, that

she had no choice but to resign and that Naphcare is responsible

for her constructive discharge.

     Thompson filed this complaint in January 2002, advancing

claims   of    sexual   harassment,       hostile   work   environment,      and

constructive discharge —— all under 42 U.S.C. § 2000e et seq.

(“Title VII”) —— arising from advances allegedly made by Isaac

while he was Thompson’s supervisor at Naphcare.                  Thompson also

claimed that Naphcare was liable under state law for intentional

infliction of emotional distress, failure to enforce Title VII, and

                                      6
constructive wrongful termination. She later amended her complaint

to add Title VII and state law wrongful termination claims against

Isaac individually. The district court dismissed Thompson’s claims

against Isaac for Title VII violations and wrongful termination,

holding under Rule 12(b)(6) that Thompson had failed to state

claims for which relief could be granted. Following discovery, the

district   court   granted    Naphcare’s   summary   judgment   motion   to

dismiss all remaining claims, and this appeal ensued.           On appeal,

Thompson only complains of the dismissal of her Title VII sexual

harassment and constructive discharge claims against Naphcare and

her state law emotional distress claims against Isaac.2

                              II. ANALYSIS

A. Standard of Review

     The   district   court    dismissed     Thompson’s   claims   against

Naphcare on its motion for summary judgment and against Isaac for

failure to state a claim.      We review both rulings de novo.3

B. Sexual Harassment Claims Against Naphcare




     2
       Thompson contends that she brought a state law claim for
emotional distress in addition to her wrongful termination and
Title VII claims against Isaac at the trial court level, and argues
that the district court erred in not addressing this claim in its
order granting Isaac’s motion for dismiss for failure to state a
claim. As we conclude, infra, however, she did not state such a
claim in her amended complaint.
     3
       Gibson v. U.S. Postal Serv., 380 F.3d 886, 888 (5th Cir.
2004); Jackson v. City of Beaumont Police Dep’t, 958 F.2d 616, 618
(5th Cir. 1992).

                                    7
     In a Title VII sexual harassment suit, the plaintiff must

establish a prima facie case by showing that (1) she belongs to a

protected class; (2) she was subjected to unwelcome harassment; (3)

the harassment was based on sex; (4) the harassment complained of

affected a “term, condition or privilege of employment”; and (5)

the employer knew or should have known of the harassment but failed

to remedy the situation.4       Thompson advanced sexual harassment

claims of both the quid pro quo and the hostile work environment

varieties.     The former requires a showing of a tangible employment

action to satisfy the fourth prong of the foregoing test; the

latter requires a showing, in the absence of a tangible employment

action,   that     a   supervisor’s       harassment   was   nevertheless

sufficiently severe or pervasive to alter a term or condition of

employment.5     This distinction makes a difference.        An employer

held vicariously liable for quid pro quo harassment on a finding

that it took a tangible employment action toward an employee who

either accepted or rejected a supervisor’s sexual harassment is

     4
       DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d
591, 593 (5th Cir. 1995).     The parties argue about whether we
should employ the “motivating factor” analysis from the Supreme
Court’s recent Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003) decision in this case; as we hold that Thompson has not made
out a prima facie case, there is no need to address this argument
on appeal. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312
(5th Cir. 2004) (holding Desert Palace’s mixed motive analysis
applicable in ADEA cases, but noting that plaintiffs still must
demonstrate a prima facie case of discrimination).
     5
       See Burlington Indus. v. Ellerth, 524 U.S. 742, 753-54
(1998). See also Jones v. Flagship Int’l, 793 F.2d 714, 719-20,
721-22 (5th Cir. 1986).

                                      8
conclusively    presumed   to   have     had   notice   of   the   offending

supervisor’s conduct and will not be permitted to advance the

affirmative defense enunciated by the Supreme Court in Burlington

Industries, Inc. v. Ellerth6 and Faragher v. City of Boca Raton.7

In contrast, an employer that is found not to have taken a tangible

employment action toward the harassed employee but is found to have

maintained a hostile work environment by virtue of severe or

pervasive supervisor sexual harassment may nevertheless advance the

Ellerth/Faragher affirmative defense.8

     Thus, when addressing a claim of supervisor sexual harassment,

we must first determine whether an employee has suffered a tangible

employment action.9    An affirmative answer would demonstrate the

existence of quid pro quo harassment and thus automatic employer




     6
         524 U.S. 742 (1998).
     7
       524 U.S. 775 (1998); see Casiano v. AT&T Corp., 213 F.3d
278, 284 (5th Cir. 2000)(explaining that a finding of hostile
environment will not result in vicarious liability if the employer
can prove that it “exercised reasonable care to prevent and correct
promptly any sexual harassment, and...the employee unreasonably
failed to take advantage of any preventative or corrective
opportunities provided by the employer or to avoid harm otherwise,”
but that this affirmative defense is not available to an employer
that has taken a tangible employment action.
     8
       See Casiano, 213 F.3d at 283-84 (addressing the Supreme
Court’s “clear road map” for disposing of supervisor sexual
harassment cases under Title VII as set out in Burlington Indus. v.
Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton,
524 U.S. 775 (1998)).
     9
         Casiano, 213 F.3d at 284.

                                     9
liability.10    In contrast, a conclusion that the employee was not

the object of a tangible employment action requires a determination

whether the supervisor’s sexual harassment was nevertheless so

severe or pervasive that it created a “hostile environment.”     Even

if we find such a condition to have been created, though, the

employer may escape vicarious liability by successfully advancing

the Ellerth/Faragher affirmative defense.11



     1. Quid pro quo

     As noted above, our initial inquiry is whether the employee

experienced a tangible employment action at all.         A tangible

employment action usually causes economic harm to an employee, yet

this is not always the case.12 A demotion or substantial diminution

in job responsibilities may also produce a tangible employment

action, even if the employee experiences no economic injury.13    The

purpose of Title VII is to remedy ultimate employment decisions,

not to challenge every interim action taken by an employer that may

have a tangential effect on an ultimate decision.14   Thus, to have



     10
          Id.
     11
          Id.
     12
       Green v. Adm’r of Tulane Educ. Fund, 284 F.3d 642, 654 (5th
Cir. 2002).
     13
       See id. at 654-55 (citing Ellerth v. Burlington Indus., 524
U.S. 742, 761 (1998)).
     14
          Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).

                                  10
taken a tangible employment action, an employer must have made an

employment decision.

     We hold as a matter of law that Thompson failed to demonstrate

that she suffered a tangible employment action at Naphcare.    She

did not allege any diminution in her compensation or in her job

responsibilities; neither did she allege that she was demoted.

Thompson alleged only   that (1) Isaac screamed at her for taking

too long to go to the Juvenile Detention Center and gave her a

written warning for the same conduct, (2) extended her probationary

period an additional forty-five days, and (3) caused her work to be

unduly scrutinized by Wells, an LPN.   None of these actions rises

to the level of an ultimate employment decision; indeed, we have

specifically held that increased criticism of an employee’s work

does not constitute a tangible employment action.15       Absent a

tangible employment action, Thompson’s quid pro quo claim fails.

The absence of a tangible employment action does not, however,

prevent an employee from establishing the existence of a hostile

work environment.

     2. Hostile work environment


     15
       See Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997). As
we hold, infra, that Thompson has not stated a claim for
constructive discharge either, this may not serve as a tangible
employment action for her quid pro quo claim. See Wyatt v. Hunt
Plywood Co., Inc., 297 F.3d 405, 410 n.11 (5th Cir. 2002)(noting
that the plaintiff had not advanced a coherent claim for
constructive discharge and had therefore alleged no tangible
employment   action  to   support   her   charge   of  quid   pro
quo harassment).

                                11
       For supervisor sexual harassment to be actionable as a hostile

work    environment     claim,   it   must   be   “sufficiently   severe   or

pervasive to alter the conditions of employment and create an

abusive       working   environment.”16       A    sexually   objectionable

environment must be both objectively and subjectively offensive to

give rise to a cause of action under Title VII.17         Determination of

whether an environment is offensive or abusive requires an ad

hoc analysis, “focusing on factors such as the frequency of the

conduct, the severity of the conduct, 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.”18

       Thompson contends that Isaac’s behavior on the five specified

occasions over the course of a month and a half created a hostile

work environment:       two when he touched or rubbed her shoulders;

another when he told her that she did not look her age; again when

he told her that she had the figure of a college girl and asked to

accompany her on vacation in the place of her husband; and,

finally, when, in a private conference in his office, he told her

that if she were not so wrapped up in her husband, she would “see

what [Isaac] could do for her.” If verified, Isaac’s actions would



       16
            Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).
       17
            Green, 284 F.3d at 655.
       18
            Id. at 655-56.

                                       12
be boorish, offensive, and uncouth, particularly with respect to

the last remark.19

     Regardless, even if we were to assume arguendo that Isaac’s

actions    did    create     a   hostile    working    environment,      we   would

exonerate Naphcare on its affirmative defense that (1) it took

reasonable       care   to   prevent   the      harassment   and   (2)   Thompson

unreasonably failed to take advantage of the preventative or

corrective opportunities provided by Naphcare.20 Naphcare presented

evidence that its Employee Handbook, which Thompson acknowledges

receiving, included a complaint procedure by which employees should

directly contact a Human Resources manager regarding employment

discrimination claims if the employee did not feel comfortable

addressing the issue with their immediate supervisor or other

manager.     Also, once Naphcare received Thompson’s complaint, it

immediately sent two high level executives to Thompson’s worksite

to investigate her claims.             And, even though they could not

substantiate Thompson’s claims, these investigators forbade Isaac

to have solo encounters with Thompson.                Inasmuch as Thompson did

not allege any further sexually harassing conduct on the part of

Isaac after completion of the investigation by Naphcare, the

employer’s response to her complaints was not ineffectual.                       By

     19
       See, e.g., Jones v. Flagship Int’l, 793 F.2d 714, 720-21
(5th Cir. 1986) (holding that a supervisor’s sexual propositioning
of an employee on three separate occasions was not sufficiently
severe or pervasive to create a hostile working environment).
     20
          See Casiano, 213 F.3d at 284.

                                           13
taking these actions, Naphcare exercised reasonable care to prevent

and   correct     promptly      this     alleged      sexual    harassment      in   the

workplace.21     Conversely, by waiting almost two months to register

her   complaints        and    then    resigning      almost     immediately        after

Naphcare’s prompt investigation and remedial actions, Thompson can

not be said to have acted reasonably.22

C. Constructive Discharge Claim Against Naphcare

      Thompson        also    asserted    that     Isaac’s      harassing      conduct,

followed by his increased criticism and supervision of her work,

caused     her   to    be    constructively      discharged.           To   demonstrate

constructive      discharge,      a    plaintiff       must    prove    that   working

conditions were so intolerable that a reasonable person in the

plaintiff’s      position      would     feel    compelled       to    resign.23      An

employee’s obligation of reasonableness requires that she not jump

to conclusions and not assume the worst.24                     Whether a reasonable

employee      would     feel     compelled       to    resign     depends      on    the

circumstances, with special consideration, inter alia, of seven



      21
           See id.
      22
       See Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 413 (5th
Cir. 2002)(holding that the plaintiff’s refusal to report
supervisor’s discriminatory conduct to his next higher supervisor
according to company policy was unreasonable and resulted in no
vicarious liability for the employer).
      23
       Webb v. Cardiothoracic Surgery Assoc. of North Tex., 139
F.3d 532, 539 (5th Cir. 1998).
      24
       Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 310
(5th Cir. 1987) (citations omitted).

                                           14
non-exclusive factors: (1) demotion; (2) reduction in salary; (3)

reduction in job responsibilities; (4) reassignment to menial or

degrading     work;   (5)    reassignment        to    work    under     a    younger

supervisor;    (6)    badgering,    harassment,        or    humiliation      by    the

employer calculated to encourage the employee’s resignation; and

(7) offers of continued employment on terms less favorable than the

employee’s former status.25        Thompson did not prove the presence of

any of these factors.        Thompson also failed to present any other

evidence sufficient to show that her working conditions were

intolerable.26

     Taken     together,     Thompson’s     allegations         amount       to     five

instances of putative sexual harassment, a few occasions on which

she was     more   harshly   reprimanded    by        her   supervisor       than   she

believes was warranted, and overly strict supervision by an LPN

whom Thompson believed to be unqualified to supervise her work.                      As

to the harassing conduct, Naphcare unquestionably took prompt

remedial    action,    and   Thompson     does    not       allege   that     Isaac’s

discriminatory behavior continued after the investigation.27                      As to

the increased supervision and criticism, this took place over a

     25
          Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir.
1994).
     26
          See Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir.
1997).
     27
        See Wells, 139 F.3d at 539-40 (“The summary judgment
evidence reflects that [the employer] took prompt remedial action
to prevent any future harassment. This factor alone is fatal to
[the plaintiff’s] claim of constructive discharge.”).

                                      15
period of no more than two weeks in early September 2000, after

which Thompson took medical leave and then resigned.        We are

satisfied that the incidents alleged by Thompson to have created an

intolerable working environment were not of a sufficient magnitude

to do so.   We are also satisfied that an employee who resigns

without affording the employer a reasonable opportunity to address

her concerns has not been constructively discharged.28    Like her

sexual harassment claims, Thompson’s constructive discharge claim

against Naphcare fails.

D. Claims Against Isaac

     In granting Isaac’s Rule 12(b)(6) motion, the district court

dismissed all of Thompson’s claims against him. Thompson argues on

appeal that, even if the district court did not err as to her other

claims against Isaac, it erred in failing to address her claim

against him for intentional infliction of emotional distress. As

Thompson did not raise such a claim against Isaac in her amended

complaint, however, she may not raise it for the first time on



     28
       See Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.
2001)(holding that the plaintiff had not shown constructive
discharge by alleging that he had been transferred to a less
profitable store than the one at which he had previously worked,
“particularly in light of the fact that he was pursuing an EEOC
remedy that could have addressed any discrimination he suffered. .
.”). See also Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.
1990)(holding that, in most cases, a reasonable employee would
pursue internal remedies or file an EEOC complaint before
resigning, and that employees best serve the purposes of Title VII
if they attack discrimination within the context of the employment
relationship).

                                16
appeal.29   We affirm the court’s dismissal of all claims against

Isaac.

                           III. CONCLUSION

     For the foregoing reasons, all rulings of the district court

appealed by Thompson are

AFFIRMED.




     29
       See North Alamo Water Supply Corp. v. City of San Juan, 90
F.3d 910, 916 (5th Cir. 1996).

                                 17
