     Case: 09-30030     Document: 00511009728          Page: 1    Date Filed: 01/21/2010




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

                                                  FILED
                                                                          January 21, 2010

                                       No. 09-30030                    Charles R. Fulbruge III
                                                                               Clerk

LAURIE ANCONA REINE,

                                                   Plaintiff-Appellant
v.

HONEYWELL INTERNATIONAL INC,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-CV-673


Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        In this Title VII case, Laurie Reine alleges sex discrimination and
retaliation by her employer, Honeywell International Inc. The district court
granted summary judgment in Honeywell’s favor, determining that Reine had
not created any genuine issue of material fact on either claim. We AFFIRM.
        Reine began working as an operator at Honeywell in 1994 at its
Hydrofluoric Acid Unit in Geismar, Louisiana. In July of 2002, Reine was
promoted to relief backup board operator and transferred to the “D” shift under

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30030

the supervision of John Gautreau, for whom she worked until July of 2005.
During that time, Reine contends that Gautreau made a number of
discriminatory statements. She does not allege that Gautreau engaged in any
inappropriate touching or sexual advances.
      Reine asserts that Gautreau was rude, offensive, and harsh. She cites a
number of instances where he used inappropriate language and made overtly
personal remarks about Reine’s abilities and performance, though only a few of
these made any reference to her sex. Reine was able to identify 15-20 instances
of harassment in her three years on Gautreau’s shift. Reine also introduced
evidence that Gautreau treated other female employees and her African-
American co-workers quite poorly. She provided deposition testimony that
Gautreau displayed similarly demeaning behavior towards all of his
subordinates, including several white males.
      In approximately February 2005, Reine complained to management about
Gautreau’s actions.    She met with Honeywell’s Operations Manager, Plant
Manager, and Human Resources Manager.             The company conducted an
investigation. Gautreau admitted to making two of the statements. Honeywell
required Gautreau to attend coaching sessions for his behavior. In July 2005,
Reine was promoted and transferred away from Gautreau’s supervision.
      Reine further claims that Honeywell engaged in unlawful retaliation after
she complained about Gautreau’s behavior. She alleges that she was denied a
bonus in late 2005, and that Gautreau failed to call her for overtime around the
same period. Reine also asserts that she was denied promotions in March and
October of 2005, as well as in mid-2006.
      We review a grant of summary judgment de novo, applying the same
standard as the district court. Noble Energy, Inc. v. Bituminous Cas. Co., 529
F.3d 642, 645 (5th Cir. 2008). “In determining whether a genuine issue as to any
material fact exists, [the court] must view the evidence in the light most

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                                    No. 09-30030

favorable to the nonmoving party.” Fahim v. Marriott Hotel Servs., Inc., 551
F.3d 344, 348-49 (5th Cir. 2008).
      Reine seeks relief under Title VII, arguing Gautreau’s behavior created a
“hostile work environment” at Honeywell. A hostile work environment claim
arises in cases where harassment occurred, but no tangible adverse employment
action was taken. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54 (1998).
If an employee proves a hostile work environment claim against her immediate
supervisor, the employer is subject to vicarious liability. Id. at 765.
      A plaintiff who alleges a hostile work environment claim pursuant to Title
VII must typically prove five elements: (1) she belongs to a protected class; (2)
she was subjected to unwelcome harassment; (3) the harassment was based on
sex; (4) the harassment affected a term, condition or privilege of employment;
and (5) the employer knew or should have known of the harassment and did not
take prompt remedial action. LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d
383, 393 (5th Cir. 2007). Proof of the fifth element is not required where, as
here, the purported harasser is a supervisor. Id. at 393 n.2.
      The district court in this case concluded that Reine was unable to prove
that Gautreau’s treatment was “based on sex” as required by the third element.
      The “critical issue” in determining whether workplace activities constitute
harassment based on sex 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.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 80 (1998) (citation omitted).      “Title VII is not a shield against harsh
treatment at the workplace; it protects only in instances of harshness
disparately distributed.” Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th
Cir. 1981).
      Reine’s allegations easily prove that Gautreau was insulting and
demeaning. More must be shown, though: did Gautreau’s behavior evidence a

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specific discriminatory animus against Reine because of her sex?           Reine’s
evidence itself undercuts any inference of sex discrimination. Testimony from
numerous employees – male and female – demonstrates that Gautreau was an
“equal opportunity” harasser. When the conduct is equally harsh towards men
and women, there is no hostile work environment based on sex. See Butler v.
Yselta Indep. Sch. Dist., 161 F.3d 263, 270-71 (5th Cir. 1998).
      This high standard for judging hostility is specifically intended to prevent
Title VII from becoming a “general civility code” for the workplace. Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted). Reine bore the
burden to prove that Gautreau’s behavior towards female employees was more
severe than his treatment of males in the same position. See Oncale, 523 U.S.
at 80. She has not done so.
      Additionally, Reine alleges that Honeywell unlawfully retaliated against
her following her discrimination complaint. In order to establish a prima facie
case of retaliation, a plaintiff must show that: (1) she engaged in an activity
protected by Title VII; (2) an adverse employment action occurred; and (3) a
causal link exists between the protected activity and the adverse action. McCoy
v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). Assuming that the
plaintiff makes such a showing, the burden shifts to the employer to articulate
nondiscriminatory reasons for its employment action.         Id. at 557.    If the
employer satisfies this burden, the plaintiff bears the ultimate responsibility to
prove that the employer’s proffered reasons are a pretext for its true
discriminatory motivation. Id.
      The district court determined that even if Reine could prove that
Honeywell engaged in adverse employment actions, she did not demonstrate a
causal link between her discrimination complaint and the alleged adverse action,
nor did she rebut Honeywell’s non-retaliatory reasons for its behavior. Reine’s
retaliation claims stem from the denial of a single overtime opportunity and the

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denial of a discretionary bonus, both of which occurred approximately ten
months after her complaint was filed. She also alleges that she subsequently did
not receive three promotions in 2005 and 2006.
      On summary judgment, Honeywell offered non-retaliatory reasons for each
event. Honeywell introduced testimony that Gautreau followed proper company
protocol when assigning overtime to a different employee on the date that Reine
identified. Honeywell also showed that most employees at the plant did not
receive the bonus that Reine claimed to have lost. In fact, the evidence showed
that the board operator – the highest ranking employee on any given shift –
received the discretionary bonus to the exclusion of all others.
      As to the alleged failures to promote, the evidence demonstrated that
Reine actually was promoted to backup board operator after the filing of her
complaint. Concerning her applications for a further promotion, Honeywell
offered uncontradicted testimony that the decision-makers at the plant
unanimously concluded that Reine was not yet qualified for the job.
      A pretext is shown only if the adverse employment action would not have
occurred “but for” the protected conduct. Septimus v. Univ. of Houston, 399 F.3d
601, 608 (5th Cir. 2005). Reine’s subjective belief and conclusory allegations of
retaliation are insufficient to demonstrate pretext. Id. Therefore, Reine has not
met her initial burden to prove retaliation.
      AFFIRMED.




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