Marilyn Woods v. Turner Industries Grp, L.L.C.

Filing

UNPUBLISHED OPINION FILED. [13-40905 Affirmed ] Judge: JLW , Judge: PRO , Judge: CH Mandate pull date is 05/08/2014 [13-40905]

Case: 13-40905

Document: 00512600130

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Date Filed: 04/17/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40905
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 17, 2014

MARILYN WOODS
Plaintiff-Appellant

v.

Lyle W. Cayce
Clerk

TURNER INDUSTRIES GROUP, L.L.C.
Defendant-Appellee

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:12-CV-276
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Marilyn Woods appeals the district court’s grant of
summary judgment to Defendant-Appellant Turner Industries Group, L.L.C.,
dismissing her action against her former employer. Woods asserted hostile
work environment sexual harassment, in violation of Title VII and the Texas
Labor Code. Her petition included allegations of retaliation and wrongful

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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termination. The district court granted summary judgment in favor of Turner,
dismissing Woods’s Title VII claim and declining to exercise supplemental
jurisdiction of her state claims.
The district court issued a 25 page Memorandum and Order in which it
carefully and patiently explicated the facts and the law which led it to conclude
that, despite sufficiently alleging that she belonged to a protected class, that
she was subjected to unwelcome sexual harassment by a co-worker, and that
the harassment affected a term, condition, or privilege of her employment,
Woods had not, and could not, allege facts sufficient to show that Turner knew
or should have known of the harassment and failed to take prompt remedial
action. We agree in principle part with the analysis of the district court and
only write to emphasize the central factual and legal points that inform our
decision to affirm its judgment.
First, the male harasser of the female plaintiff in this case was not a
supervisor, but a co-worker. Complicating the situation, however, is the fact
that the harasser’s father worked for Turner and was higher up the
employment ladder than Woods, her harasser, and their immediate supervisor,
Bean. Accepting the allegations that Woods complained to Bean and that Bean
was personally aware of – and sometimes a witness to – the sexual harassment
suffered by Woods, we also accept the allegations that Bean, like Woods,
herself, was reluctant to report the harassment to the harasser’s father or his
superiors for fear that the father would retaliate.
That said, however, we agree with the district court that, based on all
summary judgment evidence, Turner did not know, and should not have
known, of the harassment suffered by Woods; and, without that knowledge, it
could not “fail to take prompt remedial action.” Turner had in place a clear
and explicit written system for lodging such complaints, consisting of a pair of
policies for reporting untoward acts.

First, its Workplace Harassment &
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Discrimination Policy specifies that all such complaints “MUST be reported
immediately or as soon as possible to: 1-800-626-1735,” which instruction is
repeated for emphasis at the end of the second paragraph of that policy.
Additionally, in its “Workplace Anti-Discrimination & Harassment Policy,”
Turner instructs all employees that complaints regarding harassment or
discrimination by any manager, fellow employee, vendor, client or nonemployee should be reported immediately via that same toll-free number, then
emphasizes that “It is not necessary for an employee to complain first to an
offending supervisor in order to report harassment or discrimination.”
Woods was aware of these policies and even borrowed a co-worker’s
handbook to get the toll-free number. And, after some understandable delay,
Woods did, in fact, call the 800 number and report the harassment of her coworker and Bean’s failure to take action; and Turner fired both men
immediately after receiving that report.
As this demonstrates that her employer had a fully disseminated
complaint system in place and that it took prompt remedial action when Woods
used that system, the district court correctly held that Woods had not
presented a prima facie case of hostile environment sexual harassment by a
non-supervisory co-worker within the law as established by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742 (1998) and by our subsequent cases, e.g., Stewart
v. Miss. Transp. Comm’n, 586 Fed.3d 312 (5th Cir. 2009); Woods v. Delta
Beverage Grp., Inc., 274 Fed.3d 295 (5th Cir. 2001). Moreover, the allegations
by Woods that Turner approved reporting harassment “up the line” from next
supervisor to higher supervisors does not diminish the significance of its dual
written policies and its prompt and strict adherence to them following Woods’s
call to the hotline that Turner maintained for such purposes.
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For these reasons and those more fully expressed by the district court in
its fulsome opinion, the judgment of that court is, in all respects,
AFFIRMED.

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