Ginn v. TX Wired Music Inc

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-50841
Summary Calendar
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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,
Circuit Judges.
PER CURIAM:*
Linda Ginn appeals a summary judgment in
her case against Texas Wired Music, Inc.,
doing business as Muzak Systems of San An-
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determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
*(...continued)
47.5.4.

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bases of sex and age and (2) she was
constructively discharged. The court also con-
cluded that Ginn was barred from bringing a
race discrimination claim, because she had
failed to exhaust her administrative remedies.1
Finding no error and that Ginn submitted in-
sufficient evidence to withstand summary
judgment, we affirm, essentially for the reasons
stated by the district court in its
comprehensive order of August 10, 2000.
I.
Ginn was an employee in Muzak’s
accounting department for sixteen years before
resigning. She states that the harassment be-
gan in July 1995, when Robert Vega, a
twenty-nine-year-old male, was hired as her
supervisor. Ginn complains that Vega
criticized her on an almost daily basis in regard
to her work, attitude, initiative, creativity, and
behavior toward coworkers. She also
complains that he made fun of and demeaned
her. She claims that Vega often called her
“darlin’” and “Linda Louise”2 and that he
thought she was stupid. Ginn also asserts that
she was demoted from Administrative
Assistant to Accounting Clerk and denied a
pay increase.
The events leading to Ginn’s resignation
occurred on May 23, 1997, ten days after she
had received a poor performance evaluation
from Vega. On that day, Vega and another
accounting department employee, David
Valles, began moving their desks into recently
vacated offices. Ginn heard the commotion
and stood up to see what was going on.
Apparently, her face registered consternation
at seeing Valles being moved into an office
while she was still sharing space in a cubicle.
Ginn claims that when Vega saw her
observing the furniture moving, “he came over
to her, got right in her face, and asked her, in
a hostile manner, ‘what’s the matter with you?
Can’t you take us moving a couple of desks?’”
Vega told Ginn that he was “moving over here
so [he could] keep an eye on [her].” Ginn
avers that to avoid saying something she might
later regret, she decided to leave the office for
the day. She says that Vega followed her and
shouted, “This is grounds for termination.”
He also asked her “are you going to be back?”
Ginn responded that she was not quitting.
Ginn called in sick the next two working
days. Vega sent hand-delivered letters to her
home both days, informing her that she should
call him, that she must provide a doctor’s ver-
ification that she was ill, and that the first or-
der of business on her return would be to
discuss the events of May 23. On May 30, the
president of Muzak received Ginn’s letter of
resignation, in which she requested that he ins-
truct Vega to “cease attempting to contact her
and/or harass her.”
Ginn claims that Vega’s sex and age
discrimination is evidenced by the fact that he
kept notes that were critical of her and of
Rosie Smith, an older white female, but not
critical of Valles,3 a young male, or of Lori
Hernandez, a young female hired in 1997 when
1 Ginn concedes this point in her brief on
appeal.
2 Ginn’s middle name is not “Louise.”
3 According to Ginn, Valles had been hired in
1996 to assist Smith. Valles had both a bachelor’s
and master’s degree in finance, whereas Ginn and
Smith had no education beyond high school. Fur-
ther, Valles was a salaried employee, whereas Ginn
and Smith were hourly workers.

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Smith quit.4 Ginn concedes that Vega never
made any comments based on her sex or age.
In fact, the only comment Vega made related
to sex or age was his statement before hiring
Valles that he wanted to hire someone “young
and right out of school.”
II.
We review a summary judgment de novo,
applying the same standard as did the district
court. Summary judgment is proper when the
summary judgment record, viewed in the light
most favorable to the nonmovant, establishes
that there is no material fact issue, and that the
movant is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(c); Drake v. Advance
Constr. Serv., Inc., 117 F.3d 203, 204 (5th
Cir. 1997).
III.
The court correctly stated that to prove a
hostile work environment claim based on age
or sex, Ginn must show: (1) she belongs to a
protected class; (2) she was subjected to un-
welcome harassment; (3) the harassment was
based on sex or age; (4) the harassment
affected a term, condition or privilege of
employment; and (5) the employer knew or
should have known about the harassment and
failed to take prompt remedial action. Long v.
Eastfield College, 88 F.3d 300, 309 (5th Cir.
1996) “In order to be actionable, the
challenged conduct must create an
environment that a reasonable person would
find hostile or abusive.” Id. (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 20-21 (1993)).
“Whether an environment is hostile or abusive
depends on a totality of circumstances,
focusing on factors such as the frequency of
the conduct, the severity of the conduct, the
degree to which the conduct is physically
threatening or humiliating, and the degree to
which the conduct unreasonably interferes with
an employee's work performance.” Id. (citing
Harris 510 U.S. at 22).
Although, as even Muzak admits, the work
environment Ginn describes does not sound
pleasant, the district court held that “[o]ther
than one stray remark concerning the hiring of
‘young blood’ and the fact that Ms. Ginn’s
replacement was a male under the age of 40,
there is no evidence that the harassment was
based on plaintiff’s membership in either pro-
tected class.” Our repeated holding that “stray
remarks” do not demonstrate age
discrimination was addressed recently in
Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000), which questioned this
court’s failure to draw all reasonable
inferences in favor of the nonmovant in
summary judgment cases. See Russell v.
McKinney Hosp. Venture, 235 F.3d 219 (5th
Cir. 2000) (stating that “our pre-Reeves
jurisprudence regarding so-called ‘stray re-
marks’ must be viewed cautiously.”).
Nevertheless, even giving the “young-
blood” remark the inference most favorable to
Ginn, it shows only that Vega had a preference
for hiring someone young and fresh from
school, but not that he had animus toward
Ginn based on her age, nor that his
“harassment” of her was based on age or sex
rather than simple personality conflict. This
one comment by Vega by no means shows
“(1) [sex or age] discriminatory intimidation,
ridicule, and insults that are; (2) sufficiently
severe or pervasive that they; (3) alter the con-
ditions of employment; and (4) create an
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.

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2000).5
IV.
Ginn claims that she was constructively dis-
charged. She provided no evidence, however,
that she suffered an adverse employment
action based on age or sex. She asserts that
she was “demoted” from “Administrative As-
sistant” to “Accounting Clerk,” even though
there was no reduction in salary. She also
claims she was denied a raise in 1997. While
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
that a reasonable employee would feel
compelled to resign.” Brown v. Bunge Corp.,
207 F.3d 776, 782 (5th Cir. 2000) (quoting
Barrow v. New Orleans S.S. Ass’n, 10 F.3d
292, 297 (5th Cir 1994)). As we previously
have held, to prove constructive discharge, a
plaintiff’s “resignation must have been
reasonable under all the circumstances.” Id.
Ginn’s resignation was not.
AFFIRMED.
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).

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