                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                          May 21, 2004
                                    FIFTH CIRCUIT
                                _______________________
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                        No. 03-20595
                                  _______________________


PARVANEH MOAYEDI,
                                                            Plaintiff-Appellant
                                             versus

COMPAQ COMPUTER CORPORATION, Et Al,
                                                              Defendants

COMPAQ COMPUTER CORPORATION,
                                                            Defendant-Appellee.

______________________________________________________________________________

                       Appeal from United States District Court
                          for the Southern District of Texas
                              USDC No. H-02-CV-4600
______________________________________________________________________________

Before DAVIS, PRADO, and PICKERING, Circuit Judges.

PER CURIAM:*

       Parvaneh Moayedi (“Moayedi”) began working for Compaq Computer (“Compaq”) in

1989. In 1999 she moved into a position where James Tumlinson (“Tumlinson”) became her first

level manager. She remained on Tumlinson’s team until she was terminated in a company-wide

reduction in force in July 2001. She had opportunity to transfer away from Tumlinson’s team, but

failed to do so. Immediately upon notification that she was to be laid off, Moayedi made

allegations to upper management at Compaq that Tumlinson had been sexually harassing her for



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
over two years. Compaq immediately undertook an investigation into Moayedi’s allegations and

concluded that Tumlinson had acted inappropriately. Three weeks after Moayedi’s first complaint

was filed Tumlinson was fired.

        Seeking to hold Tumlinson, as well as Compaq liable for the indiscretions of Tumlinson,

Moayedi, on January 8, 2002, filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) and the Texas Commission on Human Rights (“TCHR”)

alleging violations of Title VII of the Civil Rights Act of 1964 and the Texas Commission on

Human Rights Act (“TCHRA.”). Moayedi requested and received a right to sue letter from the

TCHR on May 6, 2002. The EEOC issued its notice of dismissal and right to sue on May 29,

2002.

        Moayedi, on July 24, 2002, filed her Original Petition in state court alleging TCHRA

claims against Compaq and state common law claims against Tumlinson.1 She filed an Amended

Petition in state court on November 18, 2002, explicitly alleging Title VII claims of racial and

sexual discrimination and retaliation against Compaq and various state law claims against both

Compaq and Tumlinson. Compaq removed the case on December 11, 2002, and filed for

summary judgment on April 23, 2003.

        The district court heard oral argument and on May 12, 2003, granted summary judgment.

Moayedi filed a timely notice of appeal. However, Moayedi has chosen not to argue against the

grant of summary judgment on either her retaliation or her racial discrimination claims.

Accordingly, she has waived review of those claims. See St. Paul Mercury Ins. Co. v. Slater, 224

F.3d 425 (5th Cir. 2000). Thus, before this Court, plaintiff contests only the dismissal of her


        1
            Tumlinson was later dismissed from the action after Moayedi settled with him.

                                                        2
sexual harassment allegations.

        Review of the district court’s grant of summary judgment is de novo using the same

standards as the lower court. See Russell v. McKinney Hosp. Venture, Inc., 235 F.3d 219 (5th

Cir. 2000). Summary judgment should be granted only when there is “no genuine issue as to any

material fact[.]” Fed. R. Civ. P. 56 (c); Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408-09 (5th

Cir. 2002).

        Moayedi argues that she was a victim of quid pro quo and hostile work environment

sexual harassment that culminated in her being laid off. She asserts that Tumlinson made it clear

to her that he controlled who would be laid off and that if she would bow to his sexual advances,

she would be protected. She refused and was laid off and argues that this factual scenario creates

a quid pro quo case subjecting Compaq to per se vicarious liability for the actions of Tumlinson.

She further argues that it was error for the district court to conclude that Tumlinson had no input

into the decision to lay her off. This conclusion by the district court entitled Compaq to assert the

affirmative defense set forth in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

        Compaq argues that the district court was correct in granting summary judgment because

Moayedi’s Title VII claims, as first asserted in the Amended Petition of November 18, 2002, are

time-barred for not having been filed within ninety days of the EEOC right to sue notice of May

29, 2002. Compaq also argues that the time-bar problem is not cured because the Title VII claims

do not properly relate back to the original TCHRA claims filed in Moayedi’s original state petition

of July 24, 2002.2      Regardless of the foregoing, Compaq argues that Moayedi’s claims fail on the



        2
           We do not address the timeliness issues as the district court did not base its decision thereon. We
choose instead to address the merits of Moayedi’s claims, as did the district court.

                                                         3
merits because Tumlinson had no input into the decision to lay Moayedi off thus obviating her

claim that Compaq is per se vicariously liable. Without the per se violation, Compaq argues that

it is entitled to the Faragher/Ellerth3 affirmative defense which bars Moayedi’s claims if Compaq

exercised reasonable care to prevent and promptly corrected any harassing behavior and if

Moayedi unreasonably failed to take advantage of the preventive and corrective opportunities

available through Compaq’s work place harassment policies.

        The district court found that Tumlinson did not participate in the decision to lay off

Moayedi and in fact had asked to retain her. The Court implicitly concluded that this finding

negates Moayedi’s assertion that this is a quid pro quo case. The court also concluded that

Moayedi failed to take advantage of the work force harassment policies in place at Compaq as she

did not complain until after she received her notice of layoff and thus Compaq had no notice of

the alleged harassment. Further, once she did complain, Compaq quickly investigated the case

and fired Tumlinson.

        Moayedi complains that the district court abused its discretion in granting summary

judgment against her because she offered evidence from which an inference could be drawn by

reasonable jurors that Tumlinson did participate in the decision to terminate her. However, the

only thing offered in argument at the summary judgment hearing by Counsel for Moayedi was her

(Moayedi’s) subjective belief that Tumlinson had such power and influenced the decision. She

bases this on alleged conversations that she had with Tumlinson wherein he asserted that he was

the only one who could save her job and that he would do so if she would succumb to his sexual



        3
            See Faragher v. City of Boca Raton, 524 U.S. 775 (1998. A companion case, Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742 (1998), was handed down at the same time.

                                                       4
advances. There is no objective evidence to support Moayedi’s version that this occurred.

Instead, she urges this Court to infer from the fact that neither Rohr nor Forlenza, her second and

third level managers who ultimately made the decision to terminate her, had ever met or knew her,

thus Tumlinson must have had input into the decision to terminate her. This is in conflict with the

direct evidence relied upon by the district court.

       Both Rohr and Forlenza provided affidavits that Tumlinson had no input into the decision

to terminate Moayedi beyond providing review appraisals on all of his employees and preparing

the list of employees he wanted to keep. As previously stated, Moayedi was on the list he wanted

to keep. Nevertheless, Moayedi argues that a jury could reasonably infer that since Tumlinson

made the threats, he ultimately carried through on them.

       The record is undisputed that Rohr and Forlenza made the decision to terminate Moayedi.

The record is undisputed that Tumlinson did not have the authority to terminate Moayedi. It is

also undisputed that Compaq underwent a major reduction in force necessitating the termination

of numerous employees. Rohr and Forlenza have provided affidavits that affirmatively state that

Tumlinson had no input into the decision to terminate Moayedi, but that Tumlinson wanted to

keep her as an employee. A deposition of Tumlinson confirms the same thing. Plaintiff did not

take the depositions of Rohr and Forlenza to attack the credibility of their affidavits. She likewise

did not offer any other evidence to refute the affidavits of Rohr and Forlenza and the deposition

testimony of Tumlinson. Plaintiff merely argues that because Tumlinson used the line that he

could save her job if she would give into his sexual desires he must have influenced the decision to

terminate her. Plaintiff has clearly produced enough evidence that she would be entitled to go to

trial against Tumlinson (with whom she settled), but she has not created a genuine issue of fact as


                                                     5
to the liability of Compaq.

       After a thorough review of the record, we agree with the district court that the “quid pro

quo” theory is inapplicable in this case because there is no genuine issue of material fact as to

whether Tumlinson participated in the decision to terminate Moayedi. See Casiano v. AT&T

Corp., 213 F.3d 278 (5th Cir. 2000)(analyzing quid pro quo and hostile work environment in

sexual discrimination/harassment claims). Thus, Compaq was entitled to rely on the

Faragher/Ellerth affirmative defenses.

       We also agree with the district court’s finding that because Moayedi did not report the

harassing behavior until after notice of her termination that she failed to reasonably avail herself of

Compaq’s workplace harassment policies. She knew these policies were in effect because she had

previously utilized them to stop a former harassing co-employee. We further agree with the

district court’s conclusion that Compaq acted reasonably and quickly in investigating the situation

and fired Tumlinson within three weeks after the harassment was reported. Moayedi failed to

offer any evidence to rebut the proffered legitimate non-discriminatory handling of this case by

Compaq.

       Once a properly supported motion for summary judgment is presented, the nonmoving

party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co.,

Inc., 584 F.2d 111, 114 (5th Cir. 1978). In other words, "the nonmoving litigant is required to

bring forward significant probative evidence demonstrating the existence of a triable issue of fact."

In Re Municipal Bond Reporting Antitrust Lit. , 672 F.2d 436, 440 (5th Cir. 1982). To defend

against a proper summary judgment motion, one may not rely on mere denial of material facts nor

on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda.


                                                  6
The nonmoving party's response, by affidavit or otherwise, must set forth specific facts showing

that there is a genuine issue for trial. Rule 56(e), Fed. R. Civ. P. See Union Planters Nat.

Leasing v. Woods, 687 F.2d 117, 119 (5th Cir. 1982). This, Moayedi failed to do.

       The district court’s grant of summary judgment in favor of Compaq is

       AFFIRMED.




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