UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 02-10255 _______________________

MELODY GIRARD,

Plaintiff-Appellee,

versus

BRINKER INTERNATIONAL PAYROLL CORPORATION,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas Civil Docket #5:00-CV-428-C _________________________________________________________________

January 14, 2003

Before GARWOOD, JONES, and STEWART, Circuit Judges:

PER CURIAM:*

The court has carefully considered this appeal of an

award of damages and attorneys fees for Title VII sexual harassment

perpetrated against Ms. Girard while she worked at a Chili’s

restaurant in Lubbock, Texas. We have carefully reviewed the

briefs, the jury verdict and pertinent portions of the record.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Having done so, we are constrained to reverse and render judgment

in favor of appellant Brinker International.

This case is largely resolved by the answers contained in

the jury verdict. We may assume without deciding that the verdict

is sustained by the evidence at least with respect to Girard’s

allegations that her co-workers at Chili’s sexually harassed her

and that Brinker did not make a good faith effort to prevent or

promptly correct the sexual harassment. Nevertheless, and

critically, the jury also found that Girard was not constructively

discharged from employment. Indeed, the record gives every

indication that she simply quit.

In light of this finding, there is no basis for the award

of lost wages and employment benefits to Girard. Because the award

of actual damages cannot be sustained, Girard also loses her

punitive damage award. This court has held in a related context,

involving the Fair Housing Act, that a punitive damages award

cannot stand in the absence of an actual damage award unless a

constitutional right has been violated. Louisiana ACORN Fair

Housing v. Leblanc,

(5th Cir. 2000). In so

deciding, we examined caselaw from this and other circuits

interpreting various federal rights statutes. The reasoning of

Louisiana ACORN applies here.

Finally, since Girard’s damage awards fail, there is no

predicate for the court’s award of attorneys fees, because “the

2 plaintiff’s level of success can critically influence the proper

amount of fees.” Thomas v. Texas Dept. of Criminal Justice,

(5th Cir. 2002).

For the foregoing reasons, the judgment is REVERSED and

RENDERED in favor of Brinker.

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