     Case: 09-30872     Document: 00511057640          Page: 1    Date Filed: 03/22/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 22, 2010

                                     No. 09-30872                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



LESLIE A. MAY,

                                                   Plaintiff-Appellant,
v.

FEDEX FREIGHT EAST, INC., TODD WATSON,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                           U.S.D.C. Case No. 07CV660


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Leslie A. May appeals the district court’s grant of
summary judgment in favor of the Defendant-Appellee, Fedex Freight East, Inc.
(“Fedex”). For the reasons discussed in greater detail below, we find that the
district court did not err when it granted Fedex’s motion for summary judgment
on May’s Title VII sexual harassment/hostile work environment claim.
Accordingly, we AFFIRM the judgment of the district court.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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       On February 13, 2007, May filed a charge questionnaire with the EEOC
alleging that she had been subjected to sex discrimination and a hostile work
environment at Fedex.1         After receiving a right to sue letter from the EEOC,
May filed her lawsuit against FedEx in federal district court.2 On August 12,
2009, the district court granted Fedex’s motion for summary judgment and
entered judgment on May’s sexual harassment/hostile work environment claim.
May timely filed her appeal.
       “This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court.” Allen v. McWane, Inc., 593
F.3d 449, 450 (5th Cir. 2010). Summary judgment is warranted when “the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “If the record,
taken as a whole, could not lead a rational trier of fact to find for the non-moving
party, then there is no genuine issue for trial.” Harvill v. Westward Commc’n,
L.L.C., 433 F.3d 428, 433 (5th Cir. 2005) (quotation marks and citation omitted).
       In order to establish a hostile work environment claim, May must
demonstrate that “(1) she is [a] member of a protected group; (2) she was the
victim of uninvited sexual harassment; (3) the harassment was based on sex; (4)
the harassment affected a term, condition, or privilege of [May’s] employment;
and (5) her employer knew or should have known of the harassment and failed
to take prompt remedial action.” Id. at 434 (quotation marks and citation
omitted).      May argues that the district court erred in granting summary


       1
           Plaintiff-Appellant’s May 31, 2007 EEOC Charge alleges the same.
       2
          May’s complaint included additional state claw claims against Todd Watson. The
district court, however, declined to exercise 42 U.S.C. § 1367 supplemental jurisdiction over
May’s state law claims against Watson. May is not appealing the district court’s dismissal of
her state law claims, and as a result, we consider only whether the district court erred in
granting judgment on her sexual harassment/hostile work environment claim against Fedex.

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judgment for Fedex because it found that the harassing conduct was not severe
or pervasive, and because the district court concluded that her employer had not
failed to take prompt remedial action. Our review of the record, however, leads
us to the conclusion that May cannot establish the fifth element– that her
employer “knew or should have known of the harassment and failed to take
prompt remedial action” Id. at 434 (quotation marks and citation omitted), and
as a result, we conclude that the district court did not err in its determination
that May cannot establish a prima facie case of sexual harassment.
       The record indicates that when May notified her managing supervisor,
Chris Panks, on September 17, 2006, that she had been subjected to sexual
harassment, Panks immediately initiated an investigation that resulted in a
written warning and temporary suspension for the offending Fedex employee,
Todd Watson. Because Watson’s record was otherwise clean and this constituted
his first offense, Fedex determined that temporary suspension was a sufficient
response to Watson’s misconduct.3 Notably, May does not contest that Panks
failed to take proper remedial action. Instead, May contends that she had
reported Watson’s harassment prior to her reporting it to Panks, when she told
her immediate supervisor, Louis Catton that “she felt uncomfortable about the
conduct of Watson.” Following her conversation with Catton, Fedex took no
remedial action. According to May, her conversation with Catton “put Fedex on
notice” that it needed to take remedial action, and Fedex failed to do take any
remedial action until after she reported Watson’s behavior to Panks on
September 17, 2006.
       Watson, however, is mistaken in her characterization of her conversation
with Catton as sufficient to put Fedex on notice that it should have taken


       3
         “Title VII does not require that an employer use the most serious sanction available
to punish an offender, particularly where, as here this was the first documented offense by
[the] individual employee.” Landgraf v. USI Film Products, 968 F.2d 427, 430 (5th Cir. 1992).

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remedial action. This Court has long recognized that in order to demonstrate
that an employer has failed to take prompt remedial action, the employee must
first show that she took “advantage of [the] corrective opportunities provided by
the employer.” Harvill, 433 F.3d at 437. The undisputed facts in the present
record, however, establish that May’s conversation with Catton does not qualify
as May’s having taken advantage of the “corrective opportunities provided by the
employer.” Prior to commencing her employment with Fedex, May received,
read, and signed the “Fedex Freight East Associates Handbook.”                     In the
Handbook, May was instructed to report any and all incidents of harassment to
the managing supervisor, Chris Panks– and to only report incidents to Louis
Catton in the event of Chris Panks’s absence.4
       Thus, the corrective procedure that Fedex provided– that May signed and
agreed to– instructed May to report any acts of harassment to Panks. 5 Once
May reported the harassment to Panks, the undisputed facts in the record
demonstrate that Fedex did take prompt remedial action.6 Consequently, May’s
argument that Fedex failed to take remedial action in response to her
conversation with Catton does not support her hostile work environment claim.
This Court has long recognized that an employee cannot argue her employer
failed to take prompt remedial action when she failed to abide by the company’s
anti-harassment policy. See id. at 439 (concluding that employee’s failure to
report harassment in accordance with the stated company policy inexcusable
where the employee had “signed a document in which she acknowledged receipt


      4
           May does not contend that Panks was absent during her conversation with Catton.
      5
        In her deposition, which Fedex submitted as evidence with its motion for summary
judgment, May openly acknowledges that Fedex’s anti-harassment policy required her to first
report Watson’s harassment to Panks, not to Catton.
       6
       May does not dispute that Panks immediately began an investigation, interviewed co-
workers and various witnesses, and ultimately decided to temporarily suspend Watson’s
employment.

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                                       No. 09-30872

of the employee handbook and stated that she understood the anti-harassment
policy.”). May “cannot prove that [Fedex] failed to take prompt remedial action
where she unreasonably failed to take advantage of corrective opportunities
provided by [Fedex].” Hockman v. Westward Commc’n, LLC, 407 F.3d 317, 330
(5th Cir. 2004).
         Accordingly, May’s hostile work environment claim fails since she cannot
establish the fifth element of her prima facie case.7 The undisputed facts in the
record demonstrate that as soon as May acted in accordance with Fedex’s anti-
harassment policy, Fedex “took the allegation seriously, it conducted prompt and
thorough investigations, and it immediately implemented remedial and
disciplinary measures based on the results of such investigations.” Waymire v.
Harris County, Tex., 86 F.3d 424, 428 (5th Cir. 1996) (quotation marks and
citation omitted).
         For the aforementioned reasons, we AFFIRM the judgment of the district
court.




         7
         Because we conclude that the district court did not err in concluding that May cannot
establish the fifth element of her claim, we do not consider whether the district court was
correct to conclude that May could not establish that the sexual harassment was sufficiently
perverse or severe.

                                              5
