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No. 95-30510

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

83 F.3d 118; 1996 U.S. App. LEXIS 11479; 70 Fair Empl. Prac. Cas. (BNA) 1303; 68 Empl. Prac. Dec. (CCH) P44,062

May 20, 1996, Decided

SUBSEQUENT HISTORY: [**1] Suggestion for Rehearing En Banc Denied July 12, 1996, Reported at: 1996 U.S. App. LEXIS 20471.

PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Louisiana. CA-94-1483-T. G Thomas Porteous, Jr, US District Judge.

DISPOSITION: AFFIRMED.

COUNSEL: For JOSEPH ONCALE, Plaintiff - Appellant: Nicholas Canaday, III, Baton Rouge, LA. Andre C LaPlace, Baton Rouge, LA.

For SUNDOWNER OFFSHORE SERVICES INCORPORATED, JOHN LYONS, DANNY PIPPEN, BRANDON JOHNSON, Defendants - Appellees: Jeffrey L Rogers, Christopher M Brown, Brown, Parker & Leahy, Houston, TX.

For EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Amicus Curiae: Mary L Clark, Equal Employment Opportunity Commission, Washington, DC.

JUDGES: Before SMITH, DUHE, and DeMOSS, Circuit Judges.

OPINIONBY: DUHE

OPINION: [*118] DUHE, Circuit Judge:

Appellant Joseph Oncale filed this suit against Sundowner Offshore Services, Inc., ("Sundowner"), John Lyons, Danny Pippen and Brandon Johnson, alleging that he had been sexually harassed during his employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. @ 2000e, et seq. ("Title VII"). The district court granted summary judgment in favor of the defendants and dismissed Oncale's case. Because our decision in Garcia v. Elf Atochem No. Am., 28 F.3d 446, 451-52 (5th Cir.1994), holds that same-sex harassment is not cognizable under Title VII, we affirm.

BACKGROUND

Joseph Oncale was employed by Sundowner on an offshore rig from August to November 1991. Oncale filed this Title VII action against Sundowner, John Lyons, his Sundowner supervisor, and Danny Pippen and Brandon Johnson, two Sundowner co-workers, alleging sexual harassment. Oncale alleges that the harassment included Pippen and Johnson restraining him while Lyons placed his penis on Oncale's neck, on one occasion, [**2] and on Oncale's arm, on another occasion; threats of homosexual rape by Lyons and Pippen; and the use of force by Lyons to push a bar of soap into Oncale's [*119] anus while Pippen restrained Oncale as he was showering on Sundowner premises. Oncale alleges both quid pro quo and hostile work environment sexual harassment. n1 Oncale quit his job at Sundowner soon after the shower incident.

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n1 Sexual harassment in the workplace violates Title VII if it constitutes quid pro quo harassment, i.e., a supervisor conditions job benefits either explicitly or implicitly on an employees participation in sexual activity, see Jones v. Flagship Int'l, 793 F.2d 714, 721-22 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S. Ct. 952, 93 L. Ed. 2d 1001 (1987), or if it alters an employee's working conditions by creating a hostile work environment because of the employee's sex. See Harris v. Forklift Systems, Inc., 510 U.S. 17, , 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993).

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The district court granted summary [**3] judgment on Oncale's Title VII claim, relying upon our statement in Garcia v. Elf Atochem No. Am., 28 F.3d 446, 451-52 (5th Cir.1994), that harassment by a male supervisor against a male subordinate does not state a claim under Title VII. Thus, the court concluded that it was "compelled to find that Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers." Finally, the court found that Oncale's co-workers, Pippen and Johnson, could not be held liable as "employers" under Title VII. DISCUSSION

Precedential Value of Garcia

Title VII makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual's ... sex...." 42 U.S.C. @ 2000e-2(a)(1). Appellant and the Equal Employment Opportunity Commission (as Amicus Curiae ) argue that Title VII's prohibition against sex discrimination and the Supreme Court's sexual harassment decisions are formulated in gender-neutral terms, and therefore, prohibit all discrimination because of sex, whether it is discrimination against men or women. See Harris v. [**4] Forklift Systems, Inc., 510 U.S. 17, , 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993) (referring to "victims" of sexual harassment, and not just female victims, and adopting "reasonable person" standard for measuring offensiveness of work environment); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49 (1986) (" "Surely a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.' ") (emphasis added) (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.1992)). Under this reading of the statute, so long as the plaintiff proves that the harassment is because of the victim's sex, the sex of the harasser and victim is irrelevant.

This panel, however, cannot review the merits of Appellant's Title VII argument on a clean slate. We are bound by our decision in Garcia v. Elf Atochem No. Am., 28 F.3d 446, 451-52 (5th Cir.1994), and must therefore affirm the district court. Although our analysis in Garcia has been rejected by various district courts, n2 we cannot overrule a [**5] prior panel's decision. In this Circuit, one panel may not overrule the decision, right or wrong, of a prior panel in the absence of an intervening contrary or superseding decision by the Court en banc or the Supreme Court. Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991).

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n2 These cases include Williams v. District of Columbia, 916 F. Supp. 1, 8 (D.D.C.1996); Sardinia v. Dellwood Foods, Inc., 1995 U.S. Dist. LEXIS 16073, 1995 WL 640502, at * 4-5 (S.D.N.Y. Nov. 1, 1995); King v. M.R. Brown, Inc., 911 F. Supp. 161, 167 (E.D.Pa.1995); Ecklund v. Fuisz Technology, Ltd., 905 F. Supp. 335, 338 (E.D.Va.1995); Raney v. District of Columbia, 892 F. Supp. 283, 286 (D.D.C.1995); Griffith v. Keystone Steel & Wire, 887 F. Supp. 1133, 1136 (C.D.Ill.1995); E.E.O.C. v. Walden Book Co., Inc., 885 F. Supp. 1100, 1101 (M.D.Tenn.1995); Roe v. K-Mart Corp., 1995 U.S. Dist. LEXIS 18211, 1995 WL 316783, at * 1 (D.S.C. March 28, 1995); Prescott v. Independent Life & Accident Ins. Co., 878 F. Supp. 1545, 1550 (M.D.Ala.1995); McCoy v. Johnson Controls World Services, Inc., 878 F. Supp. 229, 231 (S.D.Ga.1995).

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This Circuit's same-sex Title VII jurisprudence began with Giddens v. Shell Oil Co., 12 F.3d 208 (5th Cir.1993) (per curiam) (unpublished), cert. denied, U.S. , 115 S. Ct. 311, 130 L. Ed. 2d 274 (1994). Although the holding in that case is not entirely [*120] clear, it appears that the Court ruled that male-on-male harassment with sexual overtones is not sex discrimination without a showing that an employer treated the plaintiff differently because of his sex. Next, in Garcia, we extended Giddens to bar all same-sex sexual harassment claims:

Finally, we held in Giddens v. Shell Oil Co., No. 92-8533 [12 F.3d 208] (5th Cir. Dec. 6, 1993) (unpublished), that "harassment by a male supervisor against a male subordinate does not state a claim under Title VII even though the harassment has sexual overtones. Title VII addresses gender discrimination.' Accord Goluszek v. Smith, 697 F. Supp. 1452, 1456 (N.D.Ill.1988). Thus, what Locke did to Garcia could not in any event constitute sexual harassment within the purview of Title VII, and hence summary judgment in favor of all defendants was proper on this basis also.

This discussion seems [**7] to indicate clearly that same-sex harassment claims are not viable under Title VII. When read in its proper context, however, this final paragraph of the Garcia opinion poses an interpretive problem. Because the Court had already found an independent basis to affirm the grant of summary judgment to each defendant, no part of this analysis is necessary to support the ultimate decision. Thus, the question arises whether we should treat Garcia 's pronouncement on same-sex sexual harassment as binding precedent or dictum. When faced with this issue, some district courts in this Circuit (like the trial court here) have applied Garcia to dismiss same-sex harassment claims. See Sarff v. Continental Express, 894 F. Supp. 1076, 1082 (S.D.Tex.1995); Myers v. City of El Paso, 874 F. Supp. 1546, 1548 (W.D.Tex.1995). Others, by contrast, have ruled that Garcia 's statements about same-sex harassment are dicta. See Pritchett v. Sizeler Real Estate Mgmt. Co., 1995 U.S. Dist. LEXIS 5565, 1995 WL 241855, at * 2 (E.D.La. April 25, 1995); Castellano v. Whole Foods Market, Inc., No. H-94-2673, slip op. at 7-8 (S.D.Tex. October 26, 1995).

We read Garcia 's analysis of sexual harassment as binding [**8] precedent. After stating that Title VII does not recognize male-on-male claims, the Court explicitly stated that summary judgment "was proper on this basis also." This language suggests that the same-sex rationale for rejecting Garcia's claim is an alternative holding, which we treat as stare decisis in this Circuit. "It has long been settled that all alternative rationales for a given result have precedential value. "It does not make a reason given for a conclusion obiter dictum, because it is the only one of two reasons for the same conclusion.' " McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 925 n. 21 (5th Cir.1977) (quoting Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 340, 48 S. Ct. 194, 196, 72 L. Ed. 303 (1928)). Moreover, another panel of this Court has recognized Garcia as binding precedent on the issue of same-sex harassment, thereby resolving any uncertainty about Garcia 's precedential force. See Blake v. City of Laredo, 58 F.3d 637 (5th Cir.1995) (per curiam) (unpublished). Therefore, Garcia remains the law of this Circuit. n3 [*121] CONCLUSION

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n3 Although no circuit split yet exists, other circuits have indicated that same-sex claims should not be excluded from Title VII's purview. See, e.g., Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.1995) (In a heterosexual harassment action, the court noted parenthetically that "sexual harassment of women by men is the most common kind, but we do not mean to exclude the possibility that sexual harassment of men by women, or men by other men, or women by other women would not be actionable in appropriate cases."). Similarly, in concurring with the Second Circuit's decision in Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir.1993), cert. denied, U.S. , 114 S. Ct. 1189, 127 L. Ed. 2d 539 (1994), Judge Van Graafeiland observed, "harassment is harassment regardless of whether it is caused by a member of the same or opposite sex." The District of Columbia Circuit has also acknowledged the possibility of actionable sexual harassment under Title VII where "a subordinate of either gender" is harassed "by a homosexual superior of the same gender." Barnes v. Costle, 183 U.S. App. D.C. 90, 561 F.2d 983, 990 n. 55 (D.C.Cir.1977).

The Fourth Circuit, by contrast, recently held that harassment among heterosexuals of the same sex cannot give rise to a hostile environment sexual harassment claim under Title VII. McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191, 1195-96 (4th Cir.1996). McWilliams, however, explicitly does not "purport to reach any form of same-sex discrimination claim where either victim or oppressor, or both, are homosexual or bisexual." Id. at 1195 n. 4. In a later decision, the Fourth Circuit in dicta expressed its disagreement with the reasoning of Garcia. Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 751 (4th Cir.1996).

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For the foregoing reasons, the decision of the district court is AFFIRMED.