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Joseph
ONCALE, Plaintiff-Appellant, v. SUNDOWNER
OFFSHORE SERVICES, INC., John Lyons, Danny
Pippen, and Brandon Johnson,
Defendants-Appellees. 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).
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
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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- - - - - - - [**6]
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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- - - - - - - [**9]
For the
foregoing reasons, the decision of the district
court is AFFIRMED.
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