                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                            No. 01-50871


                           ANNA EBERWEIN,

                                             Plaintiff - Appellant,


                               VERSUS


   AUTO ZONERS INC., doing business as AUTO ZONE, also known
                       as AUTO ZONE, INC.

                                             Defendant - Appellee.




          Appeal from the United States District Court
                For the Western District of Texas
                         (SA-00-CV-842-HG)
                           July 30, 2002


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*

     As a result of the alleged conduct of her co-worker, Rey

Hernandez, and her immediate supervisor, Carl Allen, Anna Eberwein

has sued her employer, AutoZone, for sexual harassment and Title

VII Retaliation.    The district court concluded that Eberwein’s


     *
      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this opinion should not be published and is not precedent except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.

                                 1
complaints were unfounded and granted AutoZone’s motion for summary

judgment, dismissing Eberwein’s claims.

     Based on our review of the summary judgment record, the

opinion of the district court, and the arguments of counsel, we are

convinced that all rulings and the judgment of the district court

are correct and should be affirmed for the following reasons:



1.   With regard to Eberwein’s complaint of sexual harassment by

Hernandez, Eberwein has not identified specific facts demonstrating

that there is a genuine issue for trial as to whether Hernandez’s

conduct    constituted   harassment       based   on   sex.   The   evidence,

instead, reflects that Eberwein and Hernandez had a pattern of

animosity towards each other and a series of episodes involving

workplace disputes.2     Eberwein’s co-workers unanimously testified

that her problems with Hernandez did not concern sexual harassment.

In fact, Eberwein, herself, testified in her deposition that

Hernandez did not sexually harass her and that her problems with

him concerned her belief that he was “not carrying his load” at

work.     Eberwein stated, “[M]aybe [Rey] didn’t like me. . . .            I

didn’t have anything against Rey, other than he didn’t pull his


     2
       On May 16 and 17, 1998, Eberwein and Hernandez were involved
in conflict (which involved profanity) regarding who should obtain
a SKU number for a bolt and Hernandez’s alleged refusal to help her
with a Spanish speaking customer. Moreover, shortly thereafter,
Hernandez complained that Eberwein humiliated him and undermined
his authority in his assistance of a customer with an air
conditioning problem.

                                      2
load.”    When asked if she claimed that Mr. Hernandez sexually

harassed her, Eberwein responded, “No, I don’t.”   “It is a simple

fact that in a workplace, some workers will not get along with one

another, and this Court will not elevate a few harsh words or

‘cold-shouldering’ to the level of actionable offense.”   McConathy

v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 564 (5th Cir. 1998).3



2.   On the other hand, the evidence in the summary judgment record

does create an issue of fact as to whether Allen, Eberwein’s

immediate supervisor, sexually harassed her.     Because, however,

there is absolutely no evidence in the record that his conduct

“culminated” in the adverse employment action taken against her,

Eberwein cannot make out a claim for quid pro quo harassment under

which AutoZone could be held vicariously liable. Casiano v. AT&T

Corp., 213 F.3d 278, 283.    Eberwein was not fired by Allen.   In

      3
        Assuming, arguendo, that Hernandez sexually harassed
Eberwein, AutoZone would not be liable because the evidence does
not suggest that AutoZone either knew or should have known of the
alleged harassment. The summary judgment record reflects that
AutoZone promptly investigated all the complaints Eberwein made
against Hernandez, through a series of visits to the store by
management officials, who took statements and conducted interviews
with parties and workers who witnessed the alleged incidents.
Despite specific inquiry into “inappropriate verbal or physical
behavior,” Eberwein, in her two-and-a-half page reply, failed to
make any mention of sexual harassment and recounted only the
incidents about the bolt number and the Spanish-speaking customers.
Even Eberwein testified that she didn’t know what else AutoZone
could have done in response to her complaint, and, again, Eberwein
testified in her deposition that Hernandez did not sexually harass
her. Her failure to report the alleged sexual harassment is “fatal
to her case.” Woods v. Delta Beverage Group, Inc., 274 F.3d 295,
299-300 (5th Cir. 2001).

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fact, Allen had no authority to do so and had no involvement in

that decision.     Eberwein was fired by the District Manager, Daphne

Wesley, on the instructions of the Regional Manager, Rene Munoz,

because of her “ongoing problem” of “[h]ostile and disruptive

behavior” and because of her “willful damage of AutoZone property,

[and]    conduct   which    is    detrimental         to    AutoZone    and   fellow

AutoZoners.”

     Having found no quid pro quo harassment, we next examine the

record for evidence of hostile work environment sexual harassment.

Assuming   arguendo   that       Allen’s      alleged      sexual    harassment   was

“severe and pervasive,” AutoZone would be entitled to assert the

affirmative defense laid out in Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742, 765          (1998).         The summary judgment record

reflects that AutoZone exercised reasonable care to prevent and

correct sexual harassing behavior by implementing a number of

preventative measures, including a stated policy in its handbooks

prohibiting sexual harassment (of which Eberwein admits she was

aware) and the existence of a 1-800 number to report inappropriate

conduct.     Eberwein      admits    to       not   reporting       Allen’s   alleged

harassing behavior and to failing to use the 1-800 number, conduct

which in this case constitutes an unreasonable failure to take

advantage of AutoZone’s preventive and corrective opportunities.4


     4
       Despite Eberwein’s contention that the 1-800 number was an
ineffective remedy, nothing in the summary judgment record supports
such an inference.

                                          4
Ellerth, 524 U.S. at 807 (“[A] demonstration of such failure [to

unreasonably use any complaint procedure provided by the employer]

will normally suffice to satisfy the employer’s burden under the

second element of the defense.”).



3. With regard to Eberwein’s retaliation claim, there is serious

doubt as to whether she even engaged in a Title VII protected

activity at all.5   Assuming, arguendo, that she did, Eberwein has

presented   no   evidence   of   “a   causal   connection”     between   her

complaint and the adverse employment action.            After Eberwein filed

her complaint against Hernandez, Bill Morris, AutoZone’s Loss

Prevention Advisor, and District Manager Daphne Wesley investigated

and took    statements   from    Eberwein   and   her    co-workers.     When

Hernandez filed a complaint against Eberwein for the alleged

demeaning way she treated him in front of customers, Wesley again

took statements from store workers concerning that incident.             The

statements obtained corroborated Hernandez’s accusation against

Eberwein, i.e., that Eberwein was the aggressor in these incidents

and that Eberwein had used foul language and been verbally abusive

in front of customers (conduct which, by the way, Eberwein admits

     5
       Although Eberwein’s complaint does contain allegations of
“gender bias[]” and the use of “crude female based vulgarity”
against Hernandez, her complaint discusses Hernandez’s lack of team
spirit, not any alleged sexually harassing conduct.      As stated
above, when AutoZone investigated Eberwein’s complaint, Eberwein
made no allegation of sexual harassment. In fact, both she and her
co-workers have unanimously testified that her problems with
Hernandez did not concern sexual harassment.

                                      5
to in her deposition).      The evidence and recommendations were

forwarded to Regional Manager Munoz, who found Eberwein to be at

fault and ordered Wesley to issue a Corrective Action to Eberwein

and transfer her to another store.       When Eberwein responded by

destroying company property, Munoz, based on the recommendation of

Kim Rolland of AutoZone Relations, instructed Wesley to fire

Eberwein.   The uncontradicted summary judgment evidence indicates

that neither Hernandez nor Allen had any input into the decision to

fire Eberwein and that Munoz had no knowledge of Ms. Eberwein’s

ever having complained of alleged sexual harassment during her

employment with AutoZone.   See   Watts v. Kroger Co., 170 F.3d 505,

512 (5th Cir. 1999) (finding no causation for alleged retaliation

because the supervisor had no knowledge that the employee was

engaged in any protected activity); Long v. Eastfield College, 88

F.3d 300, 307 (5th Cir. 1996) (stating that no causal link exists

between an employee’s termination and her supervisor’s harassment,

if the terminating authority makes his decision not based on the

tainted supervisor’s recommendation).6

     6
       Again, assuming, arguendo, that Eberwein has made out a
prima facie case of retaliation, AutoZone has put forth evidence of
a legitimate, non-discriminatory reason for firing Eberwein –
Eberwein’s “ongoing problem” of “[h]ostile and disruptive behavior,
willful damage of AutoZone property, [and] conduct which is
detrimental to AutoZone and fellow AutoZoners.”          Eberwein’s
subjective beliefs of retaliation and the temporal proximity of her
termination with her complaint are insufficient, by themselves, to
show pretext and allow a reasonable juror to conclude from the
summary judgment evidence that AutoZone would not have terminated
Eberwein “but for” her complaint. Seaman v. CSPH, Inc., 179 F.3d
297, 301 (5th Cir. 1999).

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AFFIRMED




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