McKinnis v. Crescent Guardian, et al

* 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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 7, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 05-30728
Summary Calendar
_______________________
DANA L MCKINNIS,
Plaintiff-Appellant,
versus
CRESCENT GUARDIAN, INC; EMILE LAGARDE,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:04-CV-1490
________________________________________________________________
Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
This is an appeal from the district court’s grant of
summary judgment to defendant Crescent Guardian, Inc. (“Crescent”)
on plaintiff Dana McKinnis’s hostile work environment claim under
Title VII of the Civil Rights Act of 1964. Because the district
court erred in concluding that McKinnis’s allegations of sexual
harassment were not severe or pervasive enough to establish an
actionable hostile work environment, we must REVERSE and REMAND.

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1 McKinnis alleges that in April 2003, LaGarde sexually assaulted her
after work; she conceded that because she never told anyone at Crescent about the
assault, it is not part of the evidence in her hostile work environment claim.
2
BACKGROUND
Dana McKinnis worked as a security guard for Crescent for
seven months. For part of her tenure there, McKinnis was under the
supervision of Emile LaGarde. McKinnis alleges that LaGarde
touched her sexually at work.1 Specifically, she testified in her
deposition that during April and May of 2003, LaGarde “was
harrassing [sic] me; he kept coming in the post where I was; asking
me for hugs and kisses; and touching me and stuff.” This touching
included, according to McKinnis, “one time he touched me on my
breast; and then on my thigh.” She further testified that he “was
getting other co-workers to retaliate against me; picking with me
on the job.” McKinnis testified that she complained to a
supervisor, Rosalie Knight, that LaGarde “used to always ask me for
hugs and kisses; and he was touching on me; unwanted touching.”
In May, McKinnis’s post became armed, and she was forced
to transfer to an unarmed post because she was not yet twenty-one.
Once she turned twenty-one and was eligible to carry a firearm, she
requested a transfer back to her original post to earn more money,
at the time believing that LaGarde had been transferred from that
post. In her deposition, McKinnis stated that “they had said that
they moved him [LaGarde] from over there; that’s why I requested to
go back.”

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2 McKinnis also relies on a post-deposition affidavit to support her
claims. Because we reverse considering only her deposition testimony, we need
not reach the issue of to what extent the affidavit may be considered.
3
On August 4, 2003, McKinnis “was getting sick of” the
harassment, so she reported it to the CEO of Crescent. McKinnis
testified that:
they had me so upset I was crying and stuff; and I was –
by him not believing that Emile LaGarde touched me, you
know, it was kind of hard for me to just open my mouth
and [mention the sexual assault incident], because if he
didn’t believe he touched me then he wouldn’t believe me.
. . . I was also trying to get everything else out; but
I was so upset, and I was crying and stuff; and he acted
like he ain’t care anyway, because he was a young guy.
Two weeks later, McKinnis resigned.
McKinnis received a right-to-sue letter from the Equal
Employment Opportunity Commission, and filed this lawsuit in May of
2004. Her complaint alleged sexual harassment in violation of
Title VII and retaliation through constructive discharge.
The district court found that her allegations of sexual
harassment were “simply not severe enough or pervasive enough to
support a hostile work environment claim. . . . [T]he totality of
workplace harassment incidents reflected in plaintiff’s testimony
is a handful of inappropriate incidents which occurred over a two-
month period (at most) in April and May of 2003, specifically,
LaGarde’s alleged touching of plaintiff’s breast and thigh on one
occasion and touching her and making inappropriate remarks such as
asking for hugs and kisses on an unknown number of occasions.”2
The district court explained the fact that “LaGarde touched

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plaintiff’s breast and thigh on one occasion do[es] not reflect the
frequency or severity of harassing behavior that Title VII was
intended to address.” Calling McKinnis’s other allegations “vague
and imprecise,” the district court dismissed them as conclusory.
The court did not reach the issue of when Crescent knew of the
harassment, as it concluded that McKinnis had not showed that
LaGarde’s conduct altered a term or condition of her employment.
Accordingly, the court granted Crescent summary judgment on all of
McKinnis’s Title VII claims, as McKinnis had not met the prima
facia case for a hostile work environment.
STANDARD OF REVIEW
This court reviews the district court’s grant of summary
judgment de novo, using the same standard as the district court.
Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005).
A court must review the facts in the light most favorable to the
nonmovant, in this case McKinnis. Summary judgment is proper when
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” FED.
R. CIV. P. 56(c). The burden is on the moving party to show that
“there is an absence of evidence to support the nonmoving party’s
case.” Freeman v. Tex. Dep’t of Crim. Justice, 369 F.3d 854, 860
(5th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

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325, 106 S. Ct. 2548, 2554 (1986)). Once the moving party meets
its initial burden, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.” FED. R.
CIV. P. 56(e). The nonmoving party, however, “cannot satisfy this
burden with conclusory allegations, unsubstantiated assertions, or
only a scintilla of evidence.” Freeman, 369 F.3d at 860 (citations
omitted).
DISCUSSION
A plaintiff may establish a Title VII violation by
demonstrating a hostile work environment. Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 22-23, 114 S. Ct. 367, 371 (1993). A prima
facia case of a hostile work environment is achieved by producing
evidence that
(1) that the employee belongs to a protected class;
(2) that the employee was subject to unwelcome sexual
harassment; (3) that the harassment was based on sex;
(4) that the harassment affected a “term, condition, or
privilege” of employment; and (5) that the employer knew
or should have known of the harassment and failed to take
prompt remedial action.
Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th
Cir.1999). “For sexual harassment to be actionable, it must be
sufficiently severe or pervasive ‘to alter the conditions of [the
victim’s] employment and create an abusive working environment.’”
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399,
2403 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.
1982)).

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To determine if an environment is “hostile” or “abusive”
within the meaning of Title VII, courts look at the totality of the
circumstances including “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”
Harris v. Forklift, 510 U.S. 17, 23, 114 S.Ct. 367, 371 (1993).
“A recurring point in [Supreme Court] opinions is that ‘simple
teasing,’ offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the
‘terms and conditions of employment.’” Faragher v. City of Boca
Raton, 524 U.S. 775, 118 S. Ct. 2275, 2283 (1998) (citation
omitted).
A Title VII plaintiff need only establish that the
conduct was either severe or pervasive. “[I]solated incidents, if
egregious, can alter the terms and conditions of employment.”
Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 436 (5th Cir.
2005). “Undoubtedly, the deliberate and unwanted touching of [a
plaintiff’s] intimate body parts can constitute severe sexual
harassment.” Id. (citing Worth v. Tyer, 276 F.3d 249, 268 (7th
Cir. 2001) (“[D]irect contact with an intimate body part
constitutes one of the most severe forms of sexual harassment.”)).
This court recently explained that a plaintiff’s “assertions that
she was touched ‘numerous times’ instead of providing exact dates
or the exact number of instances do not render her allegations so

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conclusory that they fail to create a genuine issue of material
fact.” Id.
The facts in this case fall much closer to those in
Harvill, where there was an actionable hostile work environment,
than those in Shepherd, where there was not. In Shepherd, the
alleged harasser (1) made two inappropriate comments on two
different occasions (“your elbows are the same color as your
nipples” and “you have big thighs”); (2) attempted to look down the
plaintiff’s clothing several times; (3) touched her arm several
times, once rubbing his hand from her shoulder down to her wrist;
and (4) twice, patted his lap and remarked “here’s your seat.”
Shepherd, 168 F.3d at 872. In Harvill, the alleged harasser
(1) grabbed the plaintiff and kissed her on the cheek; (2) touched
her breasts “numerous times”; (3) popped rubber bands at her
breasts and patted her on the buttocks “numerous times”; and
(4) once made comments about her sex life. Harvill, 433 F.3d at
435-36.
Reviewing the facts in the light most favorable to
McKinnis, we conclude that the district court erred in finding that
she did not raise a genuine issue of fact as to whether LaGarde’s
alleged conduct toward her was sufficiently severe or pervasive to
alter the terms of her employment. Her allegations include more
than just inappropriate comments and a pat on the arm; LaGarde
touched the intimate areas of McKinnis’s body, and, reviewing the
allegation in the light most favorable to McKinnis, on a number of

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occasions. This touching is sufficiently severe to preclude
granting Crescent summary judgment.
McKinnis also argues that it was error for the district
court to grant summary judgment to Crescent on her constructive
discharge claim. To prevail on this claim, McKinnis “must
demonstrate a greater severity or pervasiveness of harassment than
the minimum required to prove a hostile working environment.”
Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992);
accord Harvill, 433 F.3d at 440. In this case, the district court
merely concluded that McKinnis had not shown that the harassment
affected a term of her employment. On remand, the district court
must address whether there are genuine issues of material fact as
to the employer’s knowledge and failure to take prompt remedial
action and as to the severity needed to establish constructive
discharge.
On the record and evidence before us, we only determine
that the district court erred in finding that the evidence was not
severe enough to establish a hostile work environment. We
emphasize that this is a close case for summary judgment, but
plaintiff’s allegations and testimony thus far create material fact
issues.
IV. CONCLUSION
For the reasons discussed above, we REVERSE the district
court’s ruling of summary judgment and REMAND for further

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proceedings.

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