     Case: 17-30643      Document: 00514898880         Page: 1    Date Filed: 04/02/2019




                            REVISED April 2, 2019

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

                                                                                FILED
                                      No. 17-30643
                                                                              April 1, 2019
                                                                             Lyle W. Cayce
                                                                                  Clerk
PANAGIOTA HEATH, also known as Penney Heath,

                                                 Plaintiff-Appellant

v.

MOSTAFA ELAASAR, in his official and personal capacities; BOARD OF
SUPERVISORS FOR THE SOUTHERN UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-4978


Before HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges,
PER CURIAM: *
       Dr. Panagiota Heath is an associate mathematics professor at Southern
University at New Orleans (SUNO). Dr. Mostafa Elaasar became Heath’s
supervisor in 2003. Since that time, Heath alleges that Elaasar has harassed
her continuously, creating a hostile work environment. She claims that the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       No. 17-30643

harassment was due to her race, religion, sex, or national origin, in violation
of Title VII and 42 U.S.C. § 1983. She seeks to hold both the university and
Elaasar liable for the harassment under Title VII and Elaasar responsible
under section 1983. Heath is a Christian female of Greek descent, while
Elaasar is a male, and he is Muslim and of Egyptian descent.
      The magistrate judge granted summary judgment in favor of the
defendants, concluding that while Heath’s alleged harassment was potentially
hostile, she had not demonstrated that the harassment occurred because of a
protected characteristic. 1 Because Heath has not presented evidence raising a
genuine issue of material fact on this issue, we AFFIRM.
                                              I.
      To begin, this appeal concerns only Heath’s hostile work environment
claim under Title VII based on sex and her hostile work environment claim
under § 1983 based on sex, race, religion, and national origin, as she has
abandoned her Title VII claims based on other protected grounds. See Heath
v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 736 (5th
Cir. 2017).
      We review a district court’s grant of summary judgment de novo. Howell
v. Town of Ball, 827 F.3d 515, 521 (5th Cir. 2016). Summary judgment will be
granted where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
Summary judgment is also appropriate where the nonmovant fails to establish
an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). However, if “a reasonable jury could return a verdict for the
nonmoving party,” summary judgment is inappropriate. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).


      1   The parties consented to proceed before a magistrate judge.


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      Title VII prohibits an employer’s “discriminat[ion] against any
individual with respect to his compensation, terms, conditions, or privileges of
employment because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). “The creation of a hostile work environment
through harassment . . . is a form of proscribed discrimination.” EEOC v. Boh
Bros. Const. Co., 731 F.3d 444, 452 (5th Cir. 2013). To establish a prima facie
case of discrimination under Title VII, Heath must demonstrate that (1) she
“belongs to a protected class,” (2) she “was subject to unwelcome . . .
harassment,” (3) “the harassment was based on a protected characteristic,” and
(4) “the harassment affected a term, condition, or privilege of employment.” Id.
at 453 (alteration and internal quotation marks omitted). Because § 1983 and
Title VII are parallel causes of action, Heath must establish the same elements
to succeed on either claim. Whiting v. Jackson St. Univ., 616 F.2d 116, 121
(5th Cir. 1980).
      Heath has alleged a myriad of hostilities, including that Elaasar did not
allow her to participate in committees, humiliated her during meetings, and
undermined her to her students and faculty members. Elaasar’s treatment of
Heath was apparently severe enough to attract attention from students, one of
whom submitted an affidavit stating that Elaasar’s treatment of “Heath
bordered on the barbaric” and that the student had “never observed such open
hatred and contempt exhibited by one teacher toward another at a university.”
A group of students signed a petition to protest Elaasar’s unprofessional
treatment of Heath, which garnered hundreds of signatures.
      Under both Title VII and § 1983, Heath must show not only that she was
harassed, but also that the harassment occurred because of a protected




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characteristic—either her sex under Title VII, 2 or her sex, race, national origin,
or religion under § 1983. Boh Bros., 731 F.3d at 453.
        The magistrate judge thoroughly analyzed the facts of this case and
found that while Heath alleged numerous hostilities, the evidence, even viewed
in the light most favorable to Heath, was insufficient to prove that such
hostilities occurred because of a protected characteristic. 3 See Tolan v. Cotton,
134 S. Ct. 1861, 1866 (2014) (“[A] court must view the evidence in the light
most favorable to the opposing party.” (internal quotation marks omitted)).
Accordingly, the magistrate judge granted summary judgment in favor of the
defendants on Heath’s claims under Title VII and § 1983 based on sex, and her
§ 1983 claims based on national origin, religion, and race. We discuss each in
turn.
                                             II.
        Regarding Heath’s claim of sex discrimination through the creation of a
hostile work environment, Heath’s only arguably direct evidence that Elaasar’s
conduct toward her was motivated by her gender is a remark made to her by
Dr. Joe Omojola some time before April 2010. Omojola 4 said to Heath: “You



        2While Title VII covers discrimination on the basis of “race, color, religion, sex, or
national origin,” 42 U.S.C. § 2000e-2(a)(1), the only Title VII claim at issue in this case is
Heath’s claim of sex discrimination through the creation of a hostile work environment. See
Heath, 850 F.3d at 736. She has abandoned her Title VII claims based on other protected
grounds. Id.
       3 A panel of this court previously reversed and remanded the magistrate judge’s grant

of summary judgment in this case, finding that the continuing violation doctrine applied to
Heath’s hostile work environment claims and the magistrate judge erred in failing to
“evaluate the full scope of the allegedly harassing conduct.” See Heath, 850 F.3d at 739, 741.
On remand, the magistrate judge followed this court’s instructions and “evaluate[d] the full
scope of the allegedly harassing conduct,” id., and considered many of Heath’s allegations
dating back to 2003 as relevant background information.
       4 Dr. Omojola’s job title is unclear from the record. He is described alternatively at

various points in the record as the Dean of Science and a professor of physics and math.
Because the record does not reveal the date of the remark, it is unclear what position Omojola
held at the time he made the remark.


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know why they don’t let you work, participate in meetings? . . . Because you
talk too much for a woman.” Heath contends that the remark is attributable
to Elaasar because Elaasar and Omojola had a close relationship.                   The
magistrate judge found that while that statement might be “[t]he closest thing”
to direct evidence of sex-based harassment, it alone was not enough to show
that Elaasar’s actions were gender-based.               Heath also relies on the
observations of one of her students, Donald Anderson, to show that the
allegedly hostile work environment arose because of her sex. In an affidavit,
Anderson explained that he met with Elaasar and asked for an explanation of
his hostile behavior toward Heath. Anderson stated that he “concluded from
[Elaasar’s] attitude and state of mind that he was unhappy that [Heath] was
not more submissive to his authority, and that he felt that she was
disrespectful of him, and failed to acknowledge his role as her superior.” The
magistrate judge found Anderson’s statement insufficient to create a genuine
issue of material fact because Anderson conveyed only his interpretation of
Elaasar’s state of mind and “[did] not convey his recollection of any statements
made by Elaasar during this meeting.”            Ultimately, the magistrate judge
concluded that “Heath has, at best, demonstrated that she suffered from an
ongoing interpersonal conflict with Dr. Elaasar, but the evidence cannot
support a finding that Dr. Elaasar’s conduct was motivated by Dr. Heath’s sex.”
       “Title VII does not prohibit all verbal or physical harassment in the
workplace; it is directed only at ‘discriminat[ion] . . . because of . . . sex.’” Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (emphasis omitted).
To prove that the alleged harassment was because of her sex, Heath must
establish “that but for the fact of her sex, [she] would not have been the object
of harassment.” Jones v. Flagship Int’l, 793 F.2d 714, 719 (5th Cir. 1986).
Though Heath’s factual allegations suggest that her workplace was indeed



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unpleasant, we agree with the magistrate judge’s conclusion that she has failed
to demonstrate that Elaasar’s alleged harassment was motivated by her sex.
See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(“Title VII, we have said, does not set forth ‘a general civility code for the
American workplace.’” (quoting Oncale, 523 U.S. at 80)). Heath has therefore
failed to establish an essential element of her case, and summary judgment on
her sex-based claims under Title VII and § 1983 is appropriate. See Celotex
Corp., 477 U.S. at 322-23.
                                       III.
      In addition to her sex discrimination claims, Heath appeals the
magistrate judge’s grant of summary judgment to defendants on her § 1983
claims alleging discrimination based on race, religion, and national origin.
Aside from one 2005 remark, Heath relies exclusively on her subjective beliefs
to support her claims. We agree with the magistrate judge that Heath has
failed to raise a genuine issue of material fact as to her claims of discrimination
based on race, religion, and national origin. See Nichols v. Lewis Grocer, 138
F.3d 563, 570-71 (5th Cir. 1998) (“A subjective belief of discrimination, however
genuine, cannot be the basis of judicial relief.” (alterations omitted) (quoting
Little v. Republic Ref. Co., 924 F.2d 93, 96 (5th Cir. 1991))); Weller v. Citation
Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996) (“[T]he ‘mere utterance of an
. . . epithet which engenders offensive feelings in an employee,’ is insufficient,
without more, to support Title VII liability.” (quoting DeAngelis v. El Paso
Mun. Police Officers Ass’n, 51 F.3d 591, 595 (5th Cir. 1995)).
      For the foregoing reasons, the judgment of the magistrate judge is
AFFIRMED.




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