            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 00-50841
                                         Summary Calendar
                                         _______________



                                          LINDA L. GINN,

                                                             Plaintiff-Appellant,

                                               VERSUS

                                  TEXAS WIRED MUSIC, INC.,
                     DOING BUSINESS AS MUZAK SYSTEMS OF SAN ANTONIO,

                                                             Defendant-Appellee.



                                   _________________________

                            Appeal from the United States District Court
                                 for the Western District of Texas
                                         (SA-99-CV-553)
                                  _________________________
                                          March 22, 2001


Before SMITH, BENAVIDES, and DENNIS,                    Linda Ginn appeals a summary judgment in
  Circuit Judges.                                    her case against Texas Wired Music, Inc.,
                                                     doing business as Muzak Systems of San An-
PER CURIAM:*                                         tonio (“Muzak”). The district court concluded
                                                     that Ginn had not provided sufficient evidence
                                                     to go to a jury on her claims that (1) she was
                                                     subjected to a hostile work environment on 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          (...continued)
limited circumstances set forth in 5TH CIR. R.       47.5.4.
bases of sex and age and (2) she was                     at seeing Valles being moved into an office
constructively discharged. The court also con-           while she was still sharing space in a cubicle.
cluded that Ginn was barred from bringing a
race discrimination claim, because she had                  Ginn claims that when Vega saw her
failed to exhaust her administrative remedies.1          observing the furniture moving, “he came over
Finding no error and that Ginn submitted in-             to her, got right in her face, and asked her, in
sufficient evidence to withstand summary                 a hostile manner, ‘what’s the matter with you?
judgment, we affirm, essentially for the reasons         Can’t you take us moving a couple of desks?’”
stated by the district court in its                      Vega told Ginn that he was “moving over here
comprehensive order of August 10, 2000.                  so [he could] keep an eye on [her].” Ginn
                                                         avers that to avoid saying something she might
                        I.                               later regret, she decided to leave the office for
    Ginn was an employee in Muzak’s                      the day. She says that Vega followed her and
accounting department for sixteen years before           shouted, “This is grounds for termination.”
resigning. She states that the harassment be-            He also asked her “are you going to be back?”
gan in July 1995, when Robert Vega, a                    Ginn responded that she was not quitting.
twenty-nine-year-old male, was hired as her
supervisor.      Ginn complains that Vega                    Ginn called in sick the next two working
criticized her on an almost daily basis in regard        days. Vega sent hand-delivered letters to her
to her work, attitude, initiative, creativity, and       home both days, informing her that she should
behavior toward coworkers.             She also          call him, that she must provide a doctor’s ver-
complains that he made fun of and demeaned               ification that she was ill, and that the first or-
her. She claims that Vega often called her               der of business on her return would be to
“darlin’” and “Linda Louise”2 and that he                discuss the events of May 23. On May 30, the
thought she was stupid. Ginn also asserts that           president of Muzak received Ginn’s letter of
she was demoted from Administrative                      resignation, in which she requested that he ins-
Assistant to Accounting Clerk and denied a               truct Vega to “cease attempting to contact her
pay increase.                                            and/or harass her.”

   The events leading to Ginn’s resignation                  Ginn claims that Vega’s sex and age
occurred on May 23, 1997, ten days after she             discrimination is evidenced by the fact that he
had received a poor performance evaluation               kept notes that were critical of her and of
from Vega. On that day, Vega and another                 Rosie Smith, an older white female, but not
accounting department employee, David                    critical of Valles,3 a young male, or of Lori
Valles, began moving their desks into recently           Hernandez, a young female hired in 1997 when
vacated offices. Ginn heard the commotion
and stood up to see what was going on.
Apparently, her face registered consternation
                                                            3
                                                               According to Ginn, Valles had been hired in
                                                         1996 to assist Smith. Valles had both a bachelor’s
   1                                                     and master’s degree in finance, whereas Ginn and
     Ginn concedes this point in her brief on
appeal.                                                  Smith had no education beyond high school. Fur-
                                                         ther, Valles was a salaried employee, whereas Ginn
   2
       Ginn’s middle name is not “Louise.”               and Smith were hourly workers.

                                                     2
Smith quit.4 Ginn concedes that Vega never               degree to which the conduct is physically
made any comments based on her sex or age.               threatening or humiliating, and the degree to
In fact, the only comment Vega made related              which the conduct unreasonably interferes with
to sex or age was his statement before hiring            an employee's work performance.” Id. (citing
Valles that he wanted to hire someone “young             Harris 510 U.S. at 22).
and right out of school.”
                                                             Although, as even Muzak admits, the work
                       II.                               environment Ginn describes does not sound
   We review a summary judgment de novo,                 pleasant, the district court held that “[o]ther
applying the same standard as did the district           than one stray remark concerning the hiring of
court. Summary judgment is proper when the               ‘young blood’ and the fact that Ms. Ginn’s
summary judgment record, viewed in the light             replacement was a male under the age of 40,
most favorable to the nonmovant, establishes             there is no evidence that the harassment was
that there is no material fact issue, and that the       based on plaintiff’s membership in either pro-
movant is entitled to judgment as a matter of            tected class.” Our repeated holding that “stray
law. FED. R. CIV. P. 56(c); Drake v. Advance             remarks” do not demonstrate age
Constr. Serv., Inc., 117 F.3d 203, 204 (5th              discrimination was addressed recently in
Cir. 1997).                                              Reeves v. Sanderson Plumbing Products, Inc.,
                                                         530 U.S. 133 (2000), which questioned this
                       III.                              court’s failure to draw all reasonable
    The court correctly stated that to prove a           inferences in favor of the nonmovant in
hostile work environment claim based on age              summary judgment cases. See Russell v.
or sex, Ginn must show: (1) she belongs to a             McKinney Hosp. Venture, 235 F.3d 219 (5th
protected class; (2) she was subjected to un-            Cir. 2000) (stating that “our pre-Reeves
welcome harassment; (3) the harassment was               jurisprudence regarding so-called ‘stray re-
based on sex or age; (4) the harassment                  marks’ must be viewed cautiously.”).
affected a term, condition or privilege of                   Nevertheless, even giving the “young-
employment; and (5) the employer knew or                 blood” remark the inference most favorable to
should have known about the harassment and               Ginn, it shows only that Vega had a preference
failed to take prompt remedial action. Long v.           for hiring someone young and fresh from
Eastfield College, 88 F.3d 300, 309 (5th Cir.            school, but not that he had animus toward
1996) “In order to be actionable, the                    Ginn based on her age, nor that his
challenged conduct must create an                        “harassment” of her was based on age or sex
environment that a reasonable person would               rather than simple personality conflict. This
find hostile or abusive.” Id. (citing Harris v.          one comment by Vega by no means shows
Forklift Sys., Inc., 510 U.S. 17, 20-21 (1993)).         “(1) [sex or age] discriminatory intimidation,
“Whether an environment is hostile or abusive            ridicule, and insults that are; (2) sufficiently
depends on a totality of circumstances,                  severe or pervasive that they; (3) alter the con-
focusing on factors such as the frequency of             ditions of employment; and (4) create an
the conduct, the severity of the conduct, the            abusive working environment.” Walker v.
                                                         Thompson, 214 F.3d 615, 625 (5th Cir.

   4
     Ginn alleges that Smith also quit because of
sex and age discrimination.

                                                     3
2000).5                                                 that a reasonable employee would feel
                                                        compelled to resign.” Brown v. Bunge Corp.,
                       IV.                              207 F.3d 776, 782 (5th Cir. 2000) (quoting
    Ginn claims that she was constructively dis-        Barrow v. New Orleans S.S. Ass’n, 10 F.3d
charged. She provided no evidence, however,             292, 297 (5th Cir 1994)). As we previously
that she suffered an adverse employment                 have held, to prove constructive discharge, a
action based on age or sex. She asserts that            plaintiff’s “resignation must have been
she was “demoted” from “Administrative As-              reasonable under all the circumstances.” Id.
sistant” to “Accounting Clerk,” even though             Ginn’s resignation was not.
there was no reduction in salary. She also
claims she was denied a raise in 1997. While              AFFIRMED.
these claims, when tied to claims of age or
sex-based harassment, can raise a triable issue
of fact, Ginn has failed to do so here. She
does no more than assert that her change of
title was a demotion.          Unsubstantiated
assertions are not competent summary
judgment evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986).6
Nor does the denial of a pay raise alone
constitute “such an aggravated situation that a
reasonable employee would be forced to re-
sign.” Pittman v. Hattisburg Mun. Separate
Sch. Dist., 644 F.2d 1071, 1077 (5th Cir.
Unit A May 1981).

   As the district court noted, “[a]
constructive discharge claim requires a
‘greater severity or pervasiveness of
harassment than the minimum required to
prove a hostile work environment’” (quoting
Benningfield v. City of Houston, 157 F.3d
369, 378 (5th Cir. 1998) (quoting Landgraf v.
USI Film Prods., 968 F.2d 427, 429 (5th Cir.
1992))). The court correctly concluded that
Ginn had not presented evidence that Vega
made her working conditions so “intolerable


   5
    Moreover, neither this remark nor any made
by Vega shows any preference for male workers.
   6
     See also Forsyth v. Barr, 19 F.3d 1527, 1533
(5th Cir. 1994).

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