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

                                                 FILED
                                                                          October 16, 2009

                                       No. 08-30996                    Charles R. Fulbruge III
                                                                               Clerk

CONNIE M LOVE,

                                                   Plaintiff-Appellant
v.

MOTIVA ENTERPRISES LLC,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-5970


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Connie M. Love appeals the district court’s grant of summary judgment in
favor of her employer, Motiva Enterprises LLC, in this same-sex sexual
harassment and retaliation case, brought pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. Upon de novo review of the record,
we conclude that Love has not shown conduct constituting harassment because
of sex, and we AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-30996

                                         I.
      Allegations of same-sex sexual harassment require the plaintiff to
establish that “the conduct at issue was not merely tinged with offensive sexual
connotations, but actually constituted discrimination because of sex.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 1002 (1998)
(quotations and ellipses omitted). We follow a two-step inquiry in such cases,
determining first whether the alleged harasser’s conduct was actually sex
discrimination, and second whether the conduct meets the standard for a quid
quo pro or hostile work environment claim. La Day v. Catalyst Tech., Inc., 302
F.3d 474, 478 (5th Cir. 2002). A plaintiff in a same-sex sexual harassment case
may establish discrimination because of sex by showing: (1) “the alleged
harasser made ‘explicit or implicit proposals of sexual activity’ and provid[ing]
‘credible evidence that the harasser was homosexual;’” (2) “the harasser was
‘motivated by general hostility to the presence of [members of the same sex] in
the workplace;’” or (3) “‘direct, comparative evidence about how the alleged
harasser treated members of both sexes in a mixed-sex workplace.’” Id. (quoting
Oncale, 523 U.S. at 80, 118 S. Ct. at 1002). It is the claim that this case involves
the first type of evidence.
                                        II.
      Love was employed in the coker unit at Motiva’s plant in Norco, Louisiana,
from 2000 until she went on disability leave in September 2006. She was absent
from work from October 2005 until January 2006 due to gastric bypass surgery.
Love alleged that before and after her surgery, co-worker Jeanne Sirey subjected
her to sexual harassment through inappropriate comments, gestures, and
physical contact. She concedes that Sirey never made explicit proposals for
sexual activity but argues that Sirey’s actions were implicitly suggestive
proposals for sex. The district court held, inter alia, that Love’s evidence, while
showing rude and humiliating behavior by Sirey, failed to establish that Sirey

                                         2
                                 No. 08-30996

had a sexual interest in Love because Sirey’s conduct was generally accompanied
by derogatory comments about Love’s appearance and character. We agree.
      The evidence shows that Sirey derided Love, frequently calling her a
“stupid bitch,” “fat cow,” and “disgusting.” She allegedly told Love that she was
a “sorry excuse for a woman because she did not make the coker conducive for
women to work in;” that she was a “failure as a woman;” and that “You think
that’s a body you have? You should be ashamed.” Sirey also allegedly touched
Love with her hands on two occasions. On the first, Sirey confronted Love in the
changing room and ran her finger under Love’s bra strap and her underwear
near her hip while at the same time calling Love “fat” and “disgusting.” On
another occasion, Sirey began rubbing Love’s shoulders and back while Love was
at the lunch table.   When Love protested, Sirey said she was “just being
friendly.”   Love testified that Sirey also would seek her out at company
functions, stand next to her, and touch her arm to let her know Sirey was
present. We agree with the district court, that these incidents, while offensive
and inappropriate, do not support an inference of sexual attraction and implicit
proposals for sex in light of Sirey’s consistent insults toward Love and
demonstrated negative feelings about Love and her appearance. Sirey’s conduct
is more indicative of humiliating or bullying behavior. See La Day, 302 F.3d at
480 (requiring “evidence suggesting that the harasser intended to have some
kind of sexual contact with the plaintiff rather than merely to humiliate him for
reasons unrelated to sexual interest”).
      Love argues, however, that after her weight loss and return to work from
surgery she was obviously more attractive to Sirey, and that Sirey’s
inappropriate conduct was no longer accompanied by negative remarks.
According to Love, Sirey tried to hug her on her first day back at work while
giving Love a ride in a company truck. She also argues that on at least twenty
occasions, Sirey rubbed her breasts against Love while reaching for a log book

                                          3
                                  No. 08-30996

located in Love’s work area. Sirey also locked Love in the women’s changing
area and bathroom, stating that she would not free Love unless Love were nice
to her and did favors for her. We conclude from the totality of the circumstances,
that these incidents, while unacceptable, do not support a finding of implicit
proposals for sex.
      Sirey had a long history of insulting Love, which cannot be ignored or
explained away by the overly simplistic view that Love’s surgery rendered her
desirable to Sirey. Further, Sirey had a poor attitude toward all her co-workers,
as documented by negative comments in her personnel file, and a history of
name-calling and treating others rudely and disrespectfully. Despite Love’s
assertion that Sirey’s derogatory comments to her ceased after the weight-loss
surgery due to an allegedly new-found sexual interest in Love, the record shows
otherwise.   Love testified that even on her last day at work Sirey made
derogatory comments to her in the changing room, which she alleged in the
complaint were about her physical appearance. Love further testified that when
Sirey made allegedly sexually suggestive gestures by licking her lips, the
gestures were accompanied by comments like “You think you’re a woman,” and
“Just be aware. Always look over your shoulder.” Love’s complaint alleged that
these threatening comments occurred in March 2006, after her surgery. Any
sexually suggestive connotation in Sirey’s actions toward Love is destroyed when
considered in the context of Sirey’s rude and obnoxious persona, which was
directed at all co-workers generally, and her overall insulting and intimidating
attitude toward Love specifically. We conclude, therefore, that Love has failed
to show implicit proposals for sexual activity.
      We also conclude that Love failed to present credible evidence that Sirey
is homosexual. Love relied in the district court on two pieces of evidence in this
regard. First, she offered a post-deposition declaration stating that Sirey had
tried to kiss her on one occasion and that she had seen Sirey kissing another

                                        4
                                        No. 08-30996

woman on another occasion.            The district court properly disregarded these
statements, however, because they are clearly inconsistent with Love’s
deposition testimony that she had no knowledge about Sirey’s sexual
orientation.1 See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.
1996) (an affidavit in opposition to summary judgment that contradicts without
explanation deposition testimony is properly disregarded). Love expressly does
not challenge this portion of the district court’s ruling.
       Second, Love offered a declaration from a co-worker who averred that on
several unspecified occasions of personal conflict with Sirey when Sirey was
“pissed off,” the co-worker “heard Sirey state loudly several times that the reason
the men did not like her was because she was gay or female.” The district court
excluded this statement as hearsay and as ambiguous. It is not hearsay if
offered merely to show that Sirey made the statement or her state of mind at the
time. See F ED. R. E VID. 803(3). But we do not find the statement to be clear and
credible proof that Sirey is homosexual sufficient to defeat summary judgment.
It is not clear whether the co-worker was uncertain which of the two conditions
Sirey allegedly asserted as the reason for the men’s feelings or whether the co-
worker heard Sirey express one or both conditions. But at most, the statement
indicates Sirey’s assessment of what her male co-workers think about her and
does not affirmatively show Sirey is homosexual. Love’s failure to show through
sufficient proof that Sirey is homosexual is by itself fatal to her claim. See La
Day, 302 F.3d at 478. We conclude that the district court properly granted
summary judgment to the defendant on Love’s sexual harassment claim.



       1
         Love also points to her declaration as providing additional evidence of Sirey’s implicit
suggestions for sexual activity that she “now remembers,” including Sirey’s allegedly caressing
Love’s shoulder and arms, making comments about Love’s perfume and uniforms, and staring
at her from a distance. To the extent that Love’s declaration attempts to “tell[] the same story
differently” from her deposition testimony, it is properly not considered. See S.W.S. Erectors,
72 F.3d at 496.

                                               5
                                  No. 08-30996

                                       III.
      Love also raises a claim of retaliation. A plaintiff raising a claim of
retaliation must establish a prima facie case by showing “(1) that she engaged
in activity protected by [T]itle VII, (2) that an adverse employment action
occurred, and (3) that a causal link existed between the protected activity and
the adverse employment action.”        La Day, 302 F.3d at 483.       An adverse
employment action occurs when “a reasonable employee would have found the
challenged action materially adverse, which . . . means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126
S. Ct. 2405, 2415 (2006) (internal quotations and citations omitted).          The
standard is an objective one, and “the significance of any given act of retaliation
will often depend upon the particular circumstances.” Id. at 69.
      Love argues that she received unjustified discipline and negative
comments in her personnel file and that she was removed from her position as
a board operator without being given other light duty work. The record shows
that two alarm incidents occurred while Love was working as a board operator,
the first on August 17, 2006, and the second on August 28, 2006. In response to
the first incident, Motiva concluded after an investigation that Love failed to
take appropriate action in response to the alarm. Motiva issued her an Oral
Reminder, which is the lowest of three forms of formal company discipline. After
the second alarm incident, Motiva concluded that Love again failed to respond
appropriately and that she should be removed from her position as board
operator. Love was not given another light duty position because of physical
limitations on her work capacity, and Love began collecting disability pay. We
conclude that Love fails to show retaliation.
      The negative comments and the Oral Reminder would not have “dissuaded
a reasonable worker from making or supporting a charge of discrimination.”

                                        6
                                  No. 08-30996

Burlington, 548 U.S. at 68, 126 S. Ct. at 2415. The negative comments alone
were not part of Motiva’s formal disciplinary process and constituted coaching
or counseling. The coaching comments in Love’s personnel log also included
positive remarks. See Sarwal v. Principi, 226 F. App’x 334, 336 (5th Cir. 2007);
see also Whittaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir. 2005) (holding that
evaluations and written warnings were not adverse actions because none had
tangible job consequences and would not have dissuaded a reasonable employee
from making a discrimination charge). The record further shows that there were
colorable grounds for the Oral Reminder. Motiva presented an affidavit from the
Production Assurance Manager with accompanying graphs documenting the
alarm incidents and explaining the results of the company’s investigation. Love
failed to meet this evidence with sufficient, competent rebuttal evidence.
Although she contends that she responded appropriately to the alarm incidents,
that her personnel file was altered and backdated, and that she was suspended
from work for two days in addition to receiving the Oral Reminder, there is no
evidence supporting her assertions, and Love conceded as much during her
deposition. Summary judgment may not be defeated by unsupported, conclusory
allegations. See Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.
1985).
      Moreover, Love fails to show a causal connection between Motiva’s actions
and her complaints about Sirey. Love relies primarily on timing to establish a
causal connection, contending that the negative comments, Oral Reminder, and
removal from her position followed closely behind contact with Motiva from her
attorney and a threat to file an EEOC complaint. The suspicious timing of
employment action along with significant other evidence of pretext can defeat
a summary judgment motion. See Shackelford v. Deloitte & Touche, LLP, 190
F.3d 398, 409 (5th Cir. 1999). Here, evidence of pretext is absent. “[O]nce the
employer offers a legitimate, nondiscriminatory reason that explains both the

                                         7
                                 No. 08-30996

adverse action and the timing, the plaintiff must offer some evidence from which
the jury may infer that retaliation was the real motive.” Swanson v. Gen. Servs.
Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). As noted above, Motiva offered the
affidavit and graphs documenting the alarm incidents. Although Love disputes
the accuracy of Motiva’s evidence, we do not second-guess an employer’s non-
discriminatory assessment of an employee’s performance. See LeMaire v. La.
Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2002). We find nothing in
the record that would persuade a reasonable jury that pretext was the real
reason for Motiva’s actions. Accordingly, the district court properly granted
summary judgment on the retaliation claim.
      AFFIRMED.




                                       8
                                   No. 08-30996

DENNIS, Circuit Judge, concurring in part, dissenting in part:
        I CONCUR in the treatment of the retaliation claim in Part III of the
majority opinion, but I respectfully DISSENT from Parts I and II of the majority
opinion.
        The summary judgment record reflects that, over a period of a year-and-a-
half when Love and Sirey were co-workers at Motiva’s Norco refinery, Sirey
repeatedly rubbed her breasts and groin area against Love’s legs and upper
body; touched Love under her bra and underwear straps while she was otherwise
undressed; requested sexually-charged “favors” from Love on numerous
occasions while, at times, fondling her own body; attempted to kiss and hug
Love; complimented Love on her good looks; and stalked and touched Love at
company functions and at Love’s work station. Separately, Sirey was seen
intimately kissing another woman and overheard referring to herself as “gay.”
Yet the majority concludes that Love’s claim for same-sex sexual harassment
does not survive summary judgment because Sirey’s alleged advances were
canceled out “when considered in the context of Sirey’s rude and obnoxious
persona . . . and her overall insulting and intimidating attitude toward Love,”
maj. op. at 4, and because Love did not “show . . . that Sirey is homosexual[,]” id.
at 5.
        I respectfully disagree with the majority’s legal premises and factual
determinations.     First, the majority misreads the test for same-sex sexual
harassment that the Supreme Court announced in Oncale v. Sundowner
Offshore Services., Inc., 523 U.S. 75 (1998). My colleagues erroneously conclude
that Sirey’s mixture of amours and animosity cannot amount to sexual
harassment unless, as a threshold, the plaintiff         first establishes Sirey’s
homosexuality. Second, the majority’s weighing and resolving of competing
inferences is inappropriate in a federal court’s decision of a motion for summary
judgment. Love has demonstrated that there are genuine issues of material fact
as to whether Sirey harassed Love “because of sex” and whether that
                                        No. 08-30996

harassment amounted to a hostile work environment. Accordingly, Motiva is
not entitled to summary judgment.
                                               I.
        In Oncale, the Supreme Court held that “nothing in Title VII necessarily
bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff
and the defendant (or the person charged with acting on behalf of the defendant)
are of the same sex.” Id. at 79. The “critical” inquiry for any sexual harassment
claim, the Court explained, “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.” Id. at 80 (quotation marks and citation omitted). In
the context of a same-sex sexual harassment claim, this means the plaintiff
“must always prove that the conduct at issue . . . constituted ‘discrimina[tion]
. . . because of . . . sex.’”1 Id. at 81. After setting forth this standard, the Court
provided three examples of how a plaintiff might go about proving discrimination
because of sex:
       Courts and juries have found the inference of discrimination easy to
       draw in most male-female sexual harassment situations, because
       the challenged conduct typically involves explicit or implicit
       proposals of sexual activity; it is reasonable to assume those
       proposals would not have been made to someone of the same sex.
       The same chain of inference would be available to a plaintiff
       alleging same-sex harassment, if there were credible evidence that


       1
         Love’s allegations fall within the category of “hostile or abusive working environment”
sexual harassment. Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 434 (5th Cir. 2005).
When the alleged harasser is a co-worker (as opposed to a supervisor), see Woods v. Delta
Beverage Group, Inc., 274 F.3d 295, 298 n.2 (5th Cir. 2001), a hostile work environment claim
requires a prima facie showing that the plaintiff is a member of a protected group; was the
target of sexual harassment; the harassment was based on sex; the harassment affected a
“term, condition or privilege” of the plaintiff’s employment; and the plaintiff’s employer knew
or should have known about the harassment but failed to remedy it, Harvill, 433 F.3d at 434
(citing Woods, 274 F.3d at 298).

                                              10
                                 No. 08-30996

     the harasser was homosexual. But harassing conduct need not be
     motivated by sexual desire to support an inference of discrimination
     on the basis of sex. A trier of fact might reasonably find such
     discrimination, for example, if a female victim is harassed in such
     sex-specific and derogatory terms by another woman as to make it
     clear that the harasser is motivated by general hostility to the
     presence of women in the workplace. A same-sex harassment
     plaintiff may also, of course, offer direct comparative evidence about
     how the alleged harasser treated members of both sexes in a
     mixed-sex workplace.


Id. at 80-81. In my opinion, the majority misreads Oncale’s examples, not
merely as typical instances of proof, but as rigid formulae by which every
same-sex sexual harassment claim must survive or perish. Maj. op. at 2. But
nothing in Oncale suggests that the Court intended them to be anything other
than non-exhaustive, instructive illustrations – announced by the use of “for
example” – by which a plaintiff might show same-sex sexual harassment. As
the Seventh Circuit Court of Appeals explained:
     The Court’s focus was on what the plaintiff must ultimately prove
     rather than the methods of doing so.        Indeed, the Court has
     previously made clear that the means of proving discrimination
     cannot be reduced to rigid formulae. See O’Connor v. Consolidated
     Coin Caterers Corp., 517 U.S. 308, 311-13 (1996) [(age
     discrimination)]; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577
     (1978) [(race discrimination)]. What matters, then, is not whether
     the facts that [the plaintiff] has alleged correspond exactly to any
     of the examples the Supreme Court has identified, but whether a



                                      11
                                         No. 08-30996

       reasonable factfinder could infer from those facts that [the plaintiff]
       was harassed “because of” his sex.
Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999).2 Therefore,
Oncale does not require that a plaintiff show that a same-sex harasser was
either amorously motivated or homosexually oriented, as the majority opinion
seems to suggest: rather, she need merely show that she was harassed “because
of sex.”
                                              II.
       Moreover, Oncale made abundantly clear that, for a plaintiff to prove that
she was sexually harassed, she need not show that the harasser was “motivated
by sexual desire.”         Oncale, 523 U.S. at 80.              Therefore, the majority’s
determination that Love’s allegations could not “support an inference of
[homo]sexual attraction and implicit proposals for sex” because of Sirey’s
accompanying derogatory and insulting language, maj. op. at 3, is mistaken
because it rests on the faulty premise that an abuser must focus on his victim
in a desirous or lustful way.3 Whether it is Sirey’s clearly sexually motivated


       2
         See also, e.g., Pedroza v. Cintas Corp., 397 F.3d 1063, 1068 (8th Cir. 2005) (describing
the list of evidentiary routes as “non-exhaustive”); James v. Platte River Steel Co., 113 F.
App’x. 864, 867 (10th Cir. 2004) (unpublished) (“As other circuits have recognized, we also note
that there is nothing in the Supreme Court’s decision in Oncale indicating that the examples
it provided were meant to be exhaustive rather than instructive.” (brackets, quotation marks
and citation omitted)); Clare Diefenbach, Same-Sex Sexual Harassment After Oncale: Meeting
the “Because of . . . Sex” Requirement, 22 BERKELEY J. GEND ER , L. & JUST . 42, 74 (2007)
(“Oncale does not require that a plaintiff prove his or her case under one of the three
evidentiary routes described in that opinion. First, the holding of Oncale is simply that
same-sex sexual harassment is actionable under Title VII as a form of sex discrimination[.]
Second, in its discussion the Court does not assert that same-sex sex discrimination can be
found only under one of its described routes.”).
       3
         The majority ignores that love-hate relationships, for example, are quite common and
well documented. See, e.g., Marianne C. DelPo, The Thin Line Between Love and Hate: Same-
Sex Hostile-Environment Sexual Harassment, 40 SANTA CLARA L. REV . 1, 1-2 (1999) (“Since
cross-gender hostile-environment sexual harassment has been deemed illegal whether the
harasser desires or hates his victim, so too must same-sex hostile-environment harassment
be actionable under Title VII in either situation.”); Diefenbach, supra note 3, at 75 (observing
that often, “for example, . . . men will torment each other, but not women, in sexual ways as

                                               12
                                       No. 08-30996

advances such as, for example, the rubbing of her private parts on Love’s body
or her insults and put-downs such as “sorry excuse for a woman,” “fat cow,”
“bitch,” “failure as a woman,” “useless as a woman,” and “[y]ou think that’s a
body you have,” they were all aimed at Love as a woman, i.e., “because of sex.”
For this reason alone, I believe that Love has established a submissible case
that Sirey abused her “because of sex.”
           Further, the majority’s weighing and resolving of factual disputes is
inappropriate in a federal court’s decision of a motion for summary judgment.
Where the summary judgment record supports competing versions of events, as
is the case here, it is the “factfinder [who] ultimately will have to decide which
side has the greater weight of the evidence.” La Day v. Catalyst Technology,
Inc., 302 F.3d 474, 480 (5th Cir. 2002). The majority’s conclusion that “Sirey’s
conduct is more indicative of humiliating or bullying behavior[,]”maj. op. at 3
(emphasis added), is just one of many reasonable interpretations of the summary
judgment evidence.4 But, as this court observed in another case where a same-
sex harasser engaged in conduct from which one could infer an intent to
embarrass and an intent to solicit sex: “[i]t is certainly possible that [the
harasser] was simply trying to humiliate [the plaintiff] for reasons unrelated to
any sexual interest . . . . [But w]hen we view the summary judgment evidence
in the light most favorable to [the plaintiff]. . .[,] there is credible evidence that
[the harasser] . . . was making sexual advances.” Id.5



a means of emasculating or humiliating the victim”).
       4
         Sirey’s insults and threats do not disprove her earlier acts of sexual discrimination
but instead tend to corroborate them by showing that she was angry over Love’s rejection of
her advances. See La Day, 302 F.3d at 480 (“[L]ater hostility . . . plausibly could be
interpreted as anger over [the plaintiff’s] rejection of [the harasser’s] sexual advances.”).
       5
        Contrary to the majority opinion, Love’s deposition testimony that she did not know
whether Sirey was gay is not “clearly inconsistent,” maj. op. at 5, with her declaration and
other evidence and was therefore properly before the court. If she thought she was being
asked for a clinical opinion of Sirey’s sexual orientation, Love may have thought she lacked

                                             13
                                         No. 08-30996

                                              III.
       Contrary to the district court, I think Love demonstrated that there is
also a genuine issue as to the material fact of whether Sirey’s harassment of
Love because of her sex created a hostile work environment for her.                           To
constitute a hostile work environment, the alleged harassment must be “severe
or pervasive,” La Day, 302 F.3d at 482 (quotation marks omitted), judged from
the viewpoint of a “reasonable person in the plaintiff’s position,” Oncale, 523 U.S.
at 82, and perceived as such by the victim, Butler v. Ysleta Indep. Sch. Dist., 161
F.3d 263, 269 (5th Cir. 1998) (citing Faragher v. City of Boca Raton, 524 U.S.
775, 787 (1998)). A court’s analysis of whether or not harassment is severe or
pervasive must “consider[] all circumstances,” Oncale, 523 U.S. at 81, “including
the ‘frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating . . .; and whether it unreasonably interferes with an
employee’s work performance.’” Faragher, 524 U.S. at 787 (quoting Harris, 510
U.S. at 23). There is no doubt that Sirey’s advances were subjectively offensive
to Love and would have been found to be objectively offensive by a reasonable
person in her shoes; as the majority correctly states, Sirey’s conduct was also
“humiliating”; various of Sirey’s verbal assaults were “threatening”; and there
is significant evidence to create at least a factual issue as to whether the
harassment interfered with Love’s work performance. Accordingly, Love has


the knowledge and training to make such an assessment. Further, S.W.S. Erectors, Inc. v.
Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996), on which the majority relies in disregarding parts
of Love’s declaration, held that an affidavit may be used in opposition to summary judgment
if it clarifies or amplifies the facts by giving greater detail or additional facts not previously
provided in the deposition, as is the case here. Id. at 496. Moreover, Sirey’s documented
statements and advances alone are enough for a trier of fact to conclude that she was
homosexual. See La Day, 302 F.3d at 480 (holding evidence of a harasser’s intention “to have
some kind of sexual contact with the plaintiff” “especially ‘credible’ proof that the harasser
may be homosexual”); Richardson v. BFI Waste Systems of North Am., Inc., 232 F.3d 207, 2000
WL 1272455, at *2 (5th Cir. 2000) (unpublished) (holding a reasonable jury could infer from
the harasser’s advances that he was homosexual despite denials to the contrary). But of
course a reasonable trier of fact could find that Sirey harassed Love because of her sex
regardless of whether Sirey was a homosexual.

                                               14
                                        No. 08-30996

demonstrated that there is a genuine dispute as to the material issue of whether
she was subjected to a hostile work environment.6
       Therefore, because a reasonable jury could return a verdict for the non-
movant on the issues of whether Love was harassed because of sex and whether
she was subjected to a hostile work environment, see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986), I respectfully DISSENT from Parts I and II, while
concurring in Part III, of the majority opinion.




       6
        Motiva does not raise the affirmative defense that “(1) it exercised reasonable care to
prevent and correct promptly any such sexual harassment, and (2) [Love] unreasonably failed
to take advantage of any preventive or corrective opportunities provided by [Motiva] or to
avoid harm otherwise.” La Day, 302 F.3d at 483 (quotation marks and brackets omitted).

                                              15
