      Case: 14-30864          Document: 00513180383        Page: 1   Date Filed: 09/03/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                            No. 14-30864                             FILED
                                                                              September 3, 2015
                                                                                Lyle W. Cayce
KELLY MATHERNE,                                                                      Clerk

                                                      Plaintiff - Appellant
v.

RUBA MANAGEMENT, doing business as IHOP

                                                      Defendant - Appellee

---------------------------------------------------

SHARETHA TART,

                                                      Plaintiff - Appellant
v.

RUBA MANAGEMENT, doing business as IHOP

                                                      Defendant - Appellee



                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                     USDC No. 2:12-CV-2461 and No. 2:12-CV-2462


Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*


        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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      Appellants Kelly Matherne and Sharetha Tart worked at an
International House of Pancakes (IHOP) franchise operated by Appellee Ruba
Management in Boutte, Louisiana. Matherne and Tart each worked for about
one month before resigning around the same time. Each subsequently filed
hostile work environment and constructive discharge claims against Ruba
based on allegations of sexual harassment. Their related cases were
consolidated for consideration by a magistrate judge who granted summary
judgment for Ruba on all claims. Appellants challenge the summary judgment
dismissal of their Title VII hostile work environment and constructive
discharge claims. We affirm.
                                              I.
      Matherne was hired on March 5, 2012, to work as a server. She worked
her final shift about one month later on the night of April 6, was excused from
work by doctor’s note from April 19 until April 26, and formally resigned on
April 27. Tart was hired on March 14, 2012, to work as a cook and “quit at
about the same time” as Matherne, in early April 2012, having worked for
between three weeks and one month.
      As part of new-hire orientation, Ruba employees receive a copy of the
company handbook, which highlights Ruba’s sexual harassment policy and
provides protocol for reporting complaints of sexual harassment. 1 When



      1   The handbook provides, in pertinent part:

      [Ruba] maintains a strict policy prohibiting harassment based on a person’s
      sex . . . This policy prohibits harassment in any form, including verbal, physical
      and visual harassment . . . The term “harassment” includes, but is not limited
      to, slurs, jokes, and other verbal, graphic or physical conduct relating to an
      individual’s . . . sex . . . . Harassment also includes sexual advances, requests
      for sexual favors, unwelcome or offensive touching and other verbal, graphic,
      or physical conduct of a sexual nature.

      If you feel a customer, or anyone with whom you come in contact with while
      working, is harassing you in any way you should make your feelings known
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                                      No. 14-30864
Matherne was hired she received and read a copy of the company handbook.
Although Tart does not recall receiving a copy of the handbook, she was aware
of Ruba’s sexual harassment policy and the protocol for reporting complaints
of sexual harassment.
       Matherne claims that during her employment she was sexually harassed
by four Ruba employees 2: Tom (a cook), Melvin (a cook), Rafael (a cook), and
Bob McCormick (her weekend manager). 3 Matherne alleges numerous
instances of physical and verbal harassment by Tom, Melvin, and Rafael.
Matherne also alleges that her weekend manager, McCormick, made several
harassing comments of a sexual nature. Although Matherne did not report
McCormick’s comments to anyone, she did complain to various members of
Ruba’s management team about some of the cooks’ actions. Tart claims that
she was physically and verbally harassed by Manuel (a cook) and verbally
harassed by another unnamed coworker. Tart reported the unnamed coworker
to management and she complained about Manuel to “a female manager.” Both



       immediately. You should report harassment to your supervisor, the personnel
       manager, or the store manager. There is no single person to whom you must
       report your complaint. If you see or hear that any other team member has been
       harassed, you should report that harassment also . . .

       All harassment complaints will be investigated, and when appropriate,
       corrective action, including disciplinary action, will be taken . . .

       Do not assume that [Ruba] is aware of your problem. It is your responsibility
       to make known your complaints and concerns so that they may be addressed
       and resolved. If you have reported harassment and are dissatisfied in any way
       with the action taken, immediately report your dissatisfaction to a higher
       authority.
       2 In most cases the parties identify the alleged harassers by first name only, without

reference to surname. We do the same where necessary.
       3 Matherne also alleges harassment by a fifth Ruba employee, Manuel (a cook), see

Appellants’ Brief at 9-10, but she did not raise any claim about Manuel in proceedings below.
Matherne has waived any argument regarding Manuel. See LeMaire v. La. Dep’t of Transp.
& Dev., 480 F.3d 383, 387 (5th Cir. 2007) (“[A]rguments not raised before the district court
are waived and cannot be raised for the first time on appeal.”).
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Matherne and Tart also allege that they saw physical harassment or overheard
verbal harassment directed at other female coworkers. 4 They reported some of
this conduct.
      Charlotte Owen served as the weekday manager for Matherne and Tart.
Owen was aware of Matherne’s complaints. Matherne requested that Owen
record her reports of harassment by Tom and Melvin in “the book”— a company
log in which managers record reports of harassment and other comments
during each shift. Owen recorded Matherne’s complaints and reviewed video
footage from surveillance cameras installed in the restaurant, which did not
reveal any actionable conduct. Matherne later came to Owen to follow up on
whether Owen had recorded Matherne’s complaints, which Owen had done.
Matherne repeated her complaints about verbal harassment by Melvin and he
was given a formal warning for “disrespectful communication towards [a] co-
employee.”
      Lisa Garrison was the general store manager for the Boutte IHOP
location. She also relieved McCormick as the weekend manager about one
week before Matherne and Tart resigned. On April 6, 2012, Garrison received
a report from the manager on duty that Matherne had complained that Rafael
had tried to kiss her. Upon learning of the incident, Garrison came to the
Boutte location and reviewed the surveillance video footage, which did not
reveal any actionable conduct. Garrison interviewed Matherne and Rafael
separately and subsequently “reduced Rafael’s work schedule and transferred
him to a different shift so that he and Matherne would not work together.”
      Around the same time, Garrison became aware that Tart had also
complained of sexual harassment. Garrison reviewed the relevant surveillance


      4  We have held “that harassment of women other than the plaintiff is relevant to a
hostile work environment claim.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 653 (5th
Cir. 2012) (citing Waltman v. Int’l Paper Co., 875 F.2d 468, 477-78 (5th Cir. 1989)).
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                                     No. 14-30864
video footage, which did not reveal any actionable conduct. She also
interviewed Tart, the alleged harassers, and other employees. At Tart’s
request, Garrison moved her to a different shift so that she would no longer
have to work with the alleged harassers. Garrison also conducted a full-staff
employee meeting during which she discussed Ruba’s prohibition against
sexual harassment and required all employees to watch an educational video
about workplace sexual harassment.
         Matherne and Tart subsequently resigned from their respective
positions and each filed suit against Ruba in federal district court, alleging
sexual harassment and constructive discharge under Title VII of the Civil
Rights Act of 1964, as well as violations of various Louisiana state laws. Their
cases were consolidated and transferred to a magistrate judge at the parties’
consent. After a hearing, the magistrate judge granted summary judgment to
Ruba on all claims. Matherne and Tart jointly appeal that decision to this
court.
                              II. Standard of Review
         We review a grant of summary judgment de novo. 5 Summary judgment
is proper if there is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law. 6 A genuine dispute of material
fact means that “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 7 We view the evidence in the light most
favorable to the nonmovant. 8 “We may affirm a grant of summary judgment
based on any rationale presented to the district court for consideration and




         5Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013).
         6Fed. R. Civ. P. 56(a).
        7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
        8 Amigo Broad., LP v. Spanish Broad. Sys., Inc., 521 F.3d 472, 479 (5th Cir. 2008)

(citation omitted).
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                                       No. 14-30864
supported by facts uncontroverted in the summary judgment record.” 9
                                     III. Discussion
       Appellants challenge the summary judgment dismissal of their hostile
work environment and constructive discharge claims under Title VII. 10
Appellants assert that the magistrate judge erred in concluding that, as a
matter of law: (1) the alleged harassment did not create a hostile or abusive
work environment; (2) Ruba, once it knew or should have known of the
harassment, did not fail to take prompt remedial action; and (3) neither
Matherne nor Tart was constructively discharged.
           A. Hostile Work Environment Claims under Title VII
       Title VII makes it “an unlawful employment practice for an
employer . . . to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 11 The Supreme Court has held that Title VII proscribes
the creation of “a discriminatorily hostile or abusive environment.” 12 To
establish a claim of hostile work environment under Title VII, a plaintiff must
prove:



       9  Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(internal quotation marks omitted).
        10 The magistrate judge concluded that the statutory scheme underlying Appellants’

Louisiana state-law claims was “a ‘mirror image’ of Title VII,” and held that the disposition
of Appellants’ federal law claims mandated “the same conclusion as to their state-law” claims.
See R.770 (citing Sims & Brown & Root Indus. Servs., Inc., 89 F. Supp. 920, 925 n.3 (W.D.
La. 1995); Fishel v. Farley, Civ. A. No. 93-480, 1994 WL 90325, at *2 (E.D. La. Mar. 16, 1994);
Benett v. Corroon & Black Corp., 517 So. 2d 1245, 1246-47 (La. Ct. App. 1987)).
        Federal Rule of Appellate Procedure 28(a)(5) requires an appellant’s brief to include
“a statement of the issues presented for review.” Issues not raised or argued in the appellant’s
brief may be considered waived and thus will not be noticed or entertained. See In re Tex.
Mortg. Servs. Corp., 761 F.2d 1068, 1073 (5th Cir. 1985). Because Appellants have not
presented an issue regarding the magistrate judge’s holding as to their state law claims, they
have waived any appeal from the summary judgment dismissal of those claims.
        11 42 U.S.C. § 2000e-2(a)(1).
        12 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

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       (1) she belongs to a protected group; (2) she was subjected to
       unwelcome harassment; (3) the harassment complained of 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 in question and failed to
       take prompt remedial action. 13

       Title VII does not reach “conduct that is merely offensive”—it proscribes
only “an environment that a reasonable person would find hostile or abusive.” 14
“[S]imple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to [actionable discrimination].” 15 “For sexual
harassment to be actionable, it must be sufficiently severe or pervasive to alter
the conditions of        the victim’s      employment and          create an      abusive
environment.” 16 Reviewing courts must consider “all the circumstances,” which
may include “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.” 17
Core to this inquiry is whether a reasonable person in the plaintiff’s position
would find the work environment hostile or abusive. 18
       Finally, “it matters whether a harasser is a ‘supervisor’ or simply a
coworker.” 19 In Vance, the Supreme Court defined a “supervisor” for Title VII
purposes as an employee “empowered by the employer to take tangible
employment actions against the victim.” 20 We have held that where the alleged


       13 Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013) (internal
quotation marks and alteration omitted).
       14 Harris, 510 U.S. at 21.
       15 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks

and citation omitted).
       16 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotation marks

and alteration omitted).
       17 Faragher, 524 U.S. at 787-88 (internal quotation marks omitted).
       18 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998).
       19 Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013).
       20 Id.

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harasser is a supervisor “the employee need only satisfy the first four
elements” discussed above in making her prima facie case of hostile work
environment. 21 In such cases however, “if no tangible employment action is
taken”—as here—“the employer may escape liability by establishing, as an
affirmative defense”: (a) that it “exercised reasonable care to prevent and
correct any sexually harassing behavior,” and (b) “that the plaintiff
unreasonably failed to take advantage of the preventative or corrective
opportunities that the employer provided.” 22
                                              1.
       Appellants’ arguments on appeal go to the fourth and fifth prongs of our
hostile work environment analysis. The magistrate judge concluded that
Appellants failed to meet either of these prongs as a matter of law. We need
not decide whether the magistrate judge erred in concluding that the alleged
sexual harassment was not sufficiently severe or pervasive to create a hostile
work environment under the fourth prong because Appellants have not shown
a genuine dispute as to whether Ruba took prompt remedial action once it
knew, or should have known, of the harassment in question—the fifth prong.
Because Appellants cannot meet this necessary element of the prima facie case,
their hostile work environment claims fail as a matter of law.
                                              2.
       We pause to remind that we have held that where the alleged harasser
is a supervisor a plaintiff need not satisfy the fifth prong of the hostile work
environment analysis. 23 In this case, however, none of the alleged harassers
qualify as a supervisor as that term is defined in Vance. It is undisputed that



       21  Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
       22  Vance, 133 S. Ct. at 2439 (citing Faragher, 524 U.S. at 807; Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 765 (1998)).
        23 Watts, 170 F.3d at 509.

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the cooks—Tom, Melvin, Rafael, and Manuel—are non-supervisor coworkers.
Although neither Appellant alleged harassment by a “supervisor” in her initial
complaint, 24 Appellants refer to the fifth alleged harasser, McCormick, as
Matherne’s “weekend manager.” 25 Even assuming, without deciding, that
Appellants have not waived this argument, the record could not support a
reasonable conclusion that McCormick qualified as Matherne’s “supervisor”
under Vance.
      There is no indication that McCormick had the power “to take tangible
employment action[]” against Matherne—to “hire, fire, demote, promote,
transfer, or discipline” 26 her. The record indicates that McCormick had some
leadership responsibilities, including control over “the book,” where managers
“would make comments . . . if anything went wrong.” Even so, the Court held
in Vance that mere “leadership responsibilities” and “the authority to assign
[job responsibilities]” 27 are insufficient to place an employee in the “unitary
category of supervisors” with authority to cause “a significant change in
employment status.” 28 “Because there is no evidence that [Ruba] empowered
[McCormick] to take any tangible employment actions against [Matherne],” 29
Matherne is not relieved of her burden under the fifth prong as to her claim
regarding McCormick.
                                         3.
      Turning to the fifth prong, Appellants must prove that Ruba “knew or
should have known of the harassment . . . and failed to take prompt remedial



      24Both alleged, “[a]mong other matters . . . [harassment] by a co-employee.”
      25 See, e.g., Appellants’ Brief at 4, 10-12. Only Matherne alleges harassment by
McCormick.
     26 See Vance, 133 S. Ct. at 2439.
     27 See id. at 2449-50.
     28 Id. at 2443 (internal quotation mark omitted).
     29 Id. at 2454.

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action.” 30 This they cannot do. The record before us cannot support a
reasonable jury finding in Appellants’ favor on this prong as a matter of law.
As an initial matter, in many cases Appellants did not make their complaints
known to Ruba at all. For example, Matherne did not report McCormick’s
comments to anyone. She presents no argument that Ruba should have known
about McCormick’s comments even though she raised no complaint. She
therefore cannot show that Ruba knew or should have known of the alleged
harassment by McCormick in the first place, much less whether Ruba failed to
adequately respond.
       Where Appellants did make reports, the record indicates that Ruba
responded promptly and with sufficient remediation. Appellants allege they
complained to Ruba management about harassment by Tom, Melvin, Rafael,
and Manuel. With regard to Tom and Melvin, Owen recorded Matherne’s
complaints and reviewed surveillance video footage, which did not validate
Matherne’s allegations. After Matherne repeated her complaints about Melvin
he was given a formal warning. With regard to Rafael, Garrison made an in-
person visit to the restaurant immediately upon learning of the alleged
incident. She reviewed surveillance video footage, which did not validate
Matherne’s allegations. She also interviewed Matherne and Rafael separately.
Garrison then “reduced Rafael’s work schedule and transferred him to a
different shift so that he and Matherne would not work together.” With regard
to Manuel, Garrison interviewed Tart and Manuel and, at Tart’s request,
transferred Tart to a different shift to separate her from Manuel. In addition
to these actions, Garrison conducted a sexual harassment education program




      30 Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013) (internal
quotation mark omitted).
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with the entire staff that among other things required all employees to watch
an educational video about workplace sexual harassment.
      These facts, which are uncontroverted in the summary judgment record,
demonstrate that Ruba took prompt remedial action once it knew, or should
have known, of the alleged harassment. The magistrate judge properly granted
summary judgment to Ruba on Appellants’ hostile work environment claims.
                           B. Constructive Discharge
      Appellants also challenge the summary judgment dismissal of their
constructive discharge claims. “To prove constructive discharge, a party must
show that ‘a reasonable party in his shoes would have felt compelled to
resign.’” 31 Constructive discharge requires a greater degree of harassment
than that required to establish a hostile work environment claim. 32 In
determining whether a reasonable employee would have felt compelled to
resign, we have considered whether the following factors are present:
      (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; or (7) offers of early
      retirement or continued employment on terms less favorable than
      the employee’s former status. 33

      Having carefully reviewed the record, we conclude that none of these
factors are present in this case. Neither Appellant was reassigned to menial or
degrading work, nor was either subjected to badgering or harassment designed




      31    Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir. 2011) (quoting
Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998)).
        32 Benningfield, 157 F.3d at 378.
        33 Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) (alteration and

citation omitted).
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to encourage her resignation. 34 In fact, it appears that Ruba offered reasonable
ameliorative solutions in both cases that each Appellant voluntarily rejected
by choosing to resign.
                                            IV.
       The judgment of the magistrate judge is AFFIRMED.




       34 Cf. Haley v. Appliance Compressor LLC, 391 F.3d 644, 651-52 (5th Cir. 2004)
(denying constructive discharge claim even despite arguable presence of badgering and
harassment calculated to encourage employee’s resignation and collecting cases in which this
court has affirmed summary judgment grants to employers on constructive discharge claims
even where at least some of the Brown factors were present).
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