Ginn v. TX Wired Music Inc

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.

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.

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).