                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       July 7, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 05-30728
                            Summary Calendar
                        _______________________

                             DANA L MCKINNIS,
                                                     Plaintiff-Appellant,

                                  versus

               CRESCENT GUARDIAN, INC; EMILE LAGARDE,


                                            Defendants-Appellees.
_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                          No. 2:04-CV-1490
________________________________________________________________

Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

           This is an appeal from the district court’s grant of

summary judgment to defendant Crescent Guardian, Inc. (“Crescent”)

on plaintiff Dana McKinnis’s hostile work environment claim under

Title VII of the Civil Rights Act of 1964.           Because the district

court erred in concluding that McKinnis’s allegations of sexual

harassment were not severe or pervasive enough to establish an

actionable hostile work environment, we must REVERSE and REMAND.




     *
            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opinion should not be published and is not precedent except under the limited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.
                                   BACKGROUND

             Dana McKinnis worked as a security guard for Crescent for

seven months.      For part of her tenure there, McKinnis was under the

supervision of Emile LaGarde.                McKinnis alleges that LaGarde

touched her sexually at work.1           Specifically, she testified in her

deposition     that   during     April   and   May   of   2003,   LaGarde   “was

harrassing [sic] me; he kept coming in the post where I was; asking

me for hugs and kisses; and touching me and stuff.”               This touching

included, according to McKinnis, “one time he touched me on my

breast; and then on my thigh.”           She further testified that he “was

getting other co-workers to retaliate against me; picking with me

on   the   job.”      McKinnis    testified     that   she   complained     to   a

supervisor, Rosalie Knight, that LaGarde “used to always ask me for

hugs and kisses; and he was touching on me; unwanted touching.”

             In May, McKinnis’s post became armed, and she was forced

to transfer to an unarmed post because she was not yet twenty-one.

Once she turned twenty-one and was eligible to carry a firearm, she

requested a transfer back to her original post to earn more money,

at the time believing that LaGarde had been transferred from that

post.     In her deposition, McKinnis stated that “they had said that

they moved him [LaGarde] from over there; that’s why I requested to

go back.”



      1
             McKinnis alleges that in April 2003, LaGarde sexually assaulted her
after work; she conceded that because she never told anyone at Crescent about the
assault, it is not part of the evidence in her hostile work environment claim.

                                         2
            On August 4, 2003, McKinnis “was getting sick of” the

harassment, so she reported it to the CEO of Crescent.               McKinnis

testified that:

      they had me so upset I was crying and stuff; and I was –
      by him not believing that Emile LaGarde touched me, you
      know, it was kind of hard for me to just open my mouth
      and [mention the sexual assault incident], because if he
      didn’t believe he touched me then he wouldn’t believe me.
      . . . I was also trying to get everything else out; but
      I was so upset, and I was crying and stuff; and he acted
      like he ain’t care anyway, because he was a young guy.

Two weeks later, McKinnis resigned.

            McKinnis received a right-to-sue letter from the Equal

Employment Opportunity Commission, and filed this lawsuit in May of

2004.     Her complaint alleged sexual harassment in violation of

Title VII and retaliation through constructive discharge.

            The district court found that her allegations of sexual

harassment were “simply not severe enough or pervasive enough to

support a hostile work environment claim. . . . [T]he totality of

workplace harassment incidents reflected in plaintiff’s testimony

is a handful of inappropriate incidents which occurred over a two-

month period (at most) in April and May of 2003, specifically,

LaGarde’s alleged touching of plaintiff’s breast and thigh on one

occasion and touching her and making inappropriate remarks such as

asking for hugs and kisses on an unknown number of occasions.”2

The   district   court   explained    the   fact   that   “LaGarde    touched


      2
             McKinnis also relies on a post-deposition affidavit to support her
claims. Because we reverse considering only her deposition testimony, we need
not reach the issue of to what extent the affidavit may be considered.

                                      3
plaintiff’s breast and thigh on one occasion do[es] not reflect the

frequency or severity of harassing behavior that Title VII was

intended to address.”   Calling McKinnis’s other allegations “vague

and imprecise,” the district court dismissed them as conclusory.

The court did not reach the issue of when Crescent knew of the

harassment, as it concluded that McKinnis had not showed that

LaGarde’s conduct altered a term or condition of her employment.

Accordingly, the court granted Crescent summary judgment on all of

McKinnis’s Title VII claims, as McKinnis had not met the prima

facia case for a hostile work environment.

                         STANDARD OF REVIEW

           This court reviews the district court’s grant of summary

judgment de novo, using the same standard as the district court.

Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005).

A court must review the facts in the light most favorable to the

nonmovant, in this case McKinnis.      Summary judgment is proper when

“the   pleadings,   depositions,   answers   to   interrogatories,   and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”          FED.

R. CIV. P. 56(c).   The burden is on the moving party to show that

“there is an absence of evidence to support the nonmoving party’s

case.”   Freeman v. Tex. Dep’t of Crim. Justice, 369 F.3d 854, 860

(5th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317,



                                   4
325, 106 S. Ct. 2548, 2554 (1986)).       Once the moving party meets

its initial burden, the nonmoving party “must set forth specific

facts showing that there is a genuine issue for trial.”       FED. R.

CIV. P. 56(e).   The nonmoving party, however, “cannot satisfy this

burden with conclusory allegations, unsubstantiated assertions, or

only a scintilla of evidence.” Freeman, 369 F.3d at 860 (citations

omitted).

                             DISCUSSION

            A plaintiff may establish a Title VII violation by

demonstrating a hostile work environment. Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 22-23, 114 S. Ct. 367, 371 (1993).        A prima

facia case of a hostile work environment is achieved by producing

evidence that

     (1) that the employee belongs to a protected class;
     (2) that the employee was subject to unwelcome sexual
     harassment; (3) that the harassment was based on sex;
     (4) that the harassment affected a “term, condition, or
     privilege” of employment; and (5) that the employer knew
     or should have known of the harassment and failed to take
     prompt remedial action.

Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th

Cir.1999).    “For sexual harassment to be actionable, it must be

sufficiently severe or pervasive ‘to alter the conditions of [the

victim’s] employment and create an abusive working environment.’”

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399,

2403 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.

1982)).



                                 5
            To determine if an environment is “hostile” or “abusive”

within the meaning of Title VII, courts look at the totality of the

circumstances       including      “the   frequency     of    the    discriminatory

conduct; its severity; whether it is physically threatening or

humiliating,       or   a   mere    offensive     utterance;        and   whether   it

unreasonably       interferes      with   an    employee’s    work    performance.”

Harris v. Forklift, 510 U.S. 17, 23, 114 S.Ct. 367, 371 (1993).

“A recurring point in [Supreme Court] opinions is that ‘simple

teasing,’        offhand    comments,     and     isolated     incidents     (unless

extremely serious) will not amount to discriminatory changes in the

‘terms and conditions of employment.’” Faragher v. City of Boca

Raton, 524 U.S. 775, 118 S. Ct. 2275, 2283 (1998) (citation

omitted).

            A Title VII plaintiff need only establish that the

conduct was either severe or pervasive.               “[I]solated incidents, if

egregious, can alter the terms and conditions of employment.”

Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 436 (5th Cir.

2005).     “Undoubtedly, the deliberate and unwanted touching of [a

plaintiff’s] intimate body parts can constitute severe sexual

harassment.”        Id. (citing Worth v. Tyer, 276 F.3d 249, 268 (7th

Cir.     2001)     (“[D]irect      contact     with   an     intimate     body   part

constitutes one of the most severe forms of sexual harassment.”)).

This court recently explained that a plaintiff’s “assertions that

she was touched ‘numerous times’ instead of providing exact dates

or the exact number of instances do not render her allegations so

                                           6
conclusory that they fail to create a genuine issue of material

fact.”    Id.

            The facts in this case fall much closer to those in

Harvill, where there was an actionable hostile work environment,

than those in Shepherd, where there was not.                In Shepherd, the

alleged   harasser   (1)   made   two       inappropriate   comments   on   two

different occasions (“your elbows are the same color as your

nipples” and “you have big thighs”); (2) attempted to look down the

plaintiff’s clothing several times; (3) touched her arm several

times, once rubbing his hand from her shoulder down to her wrist;

and (4) twice, patted his lap and remarked “here’s your seat.”

Shepherd, 168 F.3d at 872.          In Harvill, the alleged harasser

(1) grabbed the plaintiff and kissed her on the cheek; (2) touched

her breasts “numerous times”; (3) popped rubber bands at her

breasts and patted her on the buttocks “numerous times”; and

(4) once made comments about her sex life.            Harvill, 433 F.3d at

435-36.

            Reviewing the facts in the light most favorable to

McKinnis, we conclude that the district court erred in finding that

she did not raise a genuine issue of fact as to whether LaGarde’s

alleged conduct toward her was sufficiently severe or pervasive to

alter the terms of her employment.             Her allegations include more

than just inappropriate comments and a pat on the arm; LaGarde

touched the intimate areas of McKinnis’s body, and, reviewing the

allegation in the light most favorable to McKinnis, on a number of

                                        7
occasions.     This touching is sufficiently severe to preclude

granting Crescent summary judgment.

            McKinnis also argues that it was error for the district

court to grant summary judgment to Crescent on her constructive

discharge    claim.        To   prevail    on     this   claim,   McKinnis     “must

demonstrate a greater severity or pervasiveness of harassment than

the minimum required to prove a hostile working environment.”

Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992);

accord Harvill, 433 F.3d at 440.               In this case, the district court

merely concluded that McKinnis had not shown that the harassment

affected a term of her employment.               On remand, the district court

must address whether there are genuine issues of material fact as

to the employer’s knowledge and failure to take prompt remedial

action and as to the severity needed to establish constructive

discharge.

            On the record and evidence before us, we only determine

that the district court erred in finding that the evidence was not

severe    enough    to     establish   a   hostile       work   environment.      We

emphasize that this is a close case for summary judgment, but

plaintiff’s allegations and testimony thus far create material fact

issues.

                                IV.    CONCLUSION

            For the reasons discussed above, we REVERSE the district

court’s    ruling     of    summary    judgment      and    REMAND   for   further


                                           8
proceedings.




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