                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT



                                 No. 98-50529


                              KELLY A. SCRIVNER,

                                                      Plaintiff-Appellant,

                                        v.

               SOCORRO INDEPENDENT SCHOOL DISTRICT; and,
                     ALFONSO CARDENAS, Officially,

                                                      Defendants-Appellees.


         Appeal from the United States District Court for the
                       Western District of Texas

                                March 16, 1999

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

                               I.   INTRODUCTION

             Kelly Scrivner, a teacher at Myrtle Cooper Elementary

School (“Myrtle Cooper”), sued Socorro Independent School District

(“SISD”) and her school’s Principal Alfonso Cardenas, officially,

alleging,     inter   alia,    sexual    harassment   and    retaliation   in

violation of Title VII.         The district court dismissed Scrivner’s

claims on summary judgment, and she appealed.1              Finding that the


     1
      Scrivner does not appeal the district court’s dismissal of
her claims under 42 U.S.C. § 1983. Moreover, Scrivner’s claims
against Cardenas, individually, were settled prior to dismissal.
appellees properly asserted an affirmative defense to Scrivner’s

sexual harassment/hostile work environment claims and, further,

that Scrivner’s retaliation claims are unsubstantiated, we affirm.

                 II.   FACTUAL AND PROCEDURAL HISTORY

           In 1994, Scrivner began working for SISD at Myrtle

Cooper. Beginning in the summer of 1995, Scrivner alleges Cardenas

began sexually harassing her.    He made lewd comments, snapped her

bra, insinuated that she was a lesbian, and once, while she bent

down to pick up a pen, made a particularly graphic and offensive

remark.

           In November 1995, SISD Superintendent Dr. Jerry Barber

received an anonymous letter -- which Scrivner did not write --

complaining of Cardenas’s sexual harassment of teachers and his use

of vulgar language in front of staff and parents. SISD immediately

launched an investigation into the allegations.         As part of the

investigation, SISD interviewed 64 of Myrtle Cooper’s faculty and

staff.    During the course of the interviews, only three employees

stated that Cardenas’s conduct was sexually harassing or vulgar.

The vast majority asserted that the working atmosphere at Myrtle

Cooper was good to very good and that the staff was treated

acceptably.    During the course of her interview, Scrivner denied

that Cardenas’s conduct was sexually harassing or vulgar, and she

did not inform SISD of Cardenas’s sexually harassing actions toward

her.   Based on the investigation, SISD found no “tangible evidence



                                   2
of sexual harassment,” but Cardenas was warned in a memorandum to

refrain   from   making   unprofessional   “[j]okes,   innuendoes,   and

pointed comments”.

           In March 1996, upset that Cardenas had called her a

lesbian and amazed that his harassing behavior had intensified

following the initial SISD investigation, Scrivner filed a formal

harassment complaint with the district.      One month later, Scrivner

filed an EEO complaint.       Again, SISD promptly investigated the

complaint.   On April 19, 1996, SISD published the results of the

investigation, concluding that Cardenas’s conduct could create the

perception of a hostile work environment among female employees of

Myrtle Cooper.    Following the investigation, Cardenas was removed

from his position at Myrtle Cooper,2 was reassigned within SISD,

and, within the year, resigned.

           Scrivner filed this Title VII action in July 1997 after

she received a right-to-sue letter from the EEOC.          The parties

completed extensive discovery in preparation for trial.       However,

on the eve of trial, the district court granted the appellees’

motion for summary judgment.     Scrivner timely appealed.




     2
      Because the investigation was not concluded until near the
end of the school year, Cardenas was allowed to finish the year at
Myrtle Cooper before being reassigned.

                                   3
                          III.   ANALYSIS

     A.   Standard of Review

          When a district court grants summary judgment, this court

reviews the determination de novo, employing the same standards as

the district court.   See Urbano v. Continental Airlines, Inc., 138

F.3d 204, 205 (5th Cir.), cert. denied, --- U.S. ---, 119 S. Ct.

509 (1998).   Summary judgment is appropriate when, viewing the

evidence in the light most favorable to the nonmoving party, the

record reflects that no genuine issue of material fact exists, and

the moving party is entitled to judgment as a matter of law.    See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548,

2552-53 (1986); see also Fed. R. Civ. P. 56(c).

     B.   Hostile Work Environment

          In Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S. Ct.

2257 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118

S. Ct. 2275 (1998), the Supreme Court discussed the standard for

imposing vicarious liability when an employer’s supervisors are

accused of creating a sexually hostile work environment.    Unguided

by these decisions, the district court dismissed the pending

hostile work environment claims based on SISD’s prompt remedial

efforts following Scrivner’s complaint.     See Nash v. Electrospace

Sys., Inc., 9 F.3d 401, 403 (5th Cir. 1993).         On appeal, the

parties focused their arguments on the impact of Ellerth and

Faragher on the district court’s opinion.


                                 4
          Scrivner’s claims rise or fall on the application of the

Ellerth/Faragher affirmative defense to the conduct of the parties.

SISD concedes that Cardenas’s conduct created a hostile work

environment3   and   that   Cardenas,    as   principal,    was   Scrivner’s

supervisor.    But according to the Supreme Court’s new test, SISD

may still escape liability for Cardenas’s conduct if (1) SISD

“exercised reasonable care to prevent and correct promptly any

sexually harassing behavior,” and (2) Scrivner “unreasonably failed

to take advantage of any preventive or corrective opportunities

provided by [SISD] or to avoid harm otherwise.”            See Ellerth, 524

U.S. at ---, 118 S. Ct. at       2270.     Based on the complete record

presented to the district court and Scrivner’s failure to cite any

additional material evidence, we find that the facts of this case

fall squarely within the Ellerth/Faragher affirmative defense.

          SISD’s anti-discrimination policy and its response to the

two sexual harassment complaints were both reasonable and vigorous.

See, e.g., Carmon v. Lubrizol Corp., 17 F.3d 791, 793-95 (5th Cir.

1994); Nash, 9 F.3d at 403-04.          When advised of each complaint,

SISD swiftly began investigating Cardenas’s behavior.             Following

the first investigation, during which SISD interviewed all of the

Myrtle Cooper employees, Cardenas was warned to curtail certain


     3
      Because SISD does not argue that Cardenas’s conduct did not
create a hostile work environment, we offer no opinion on the issue
and assume arguendo, as did the district court, that the conduct
was sufficiently severe and pervasive to meet the plaintiff’s Title
VII burden.

                                    5
conduct.      After Scrivner complained and SISD completed its second

investigation, Cardenas was removed from his position at Myrtle

Cooper, and SISD accepted his resignation from the district.

              The summary judgment record also reflects that Scrivner

failed   reasonably       to   avail   herself    of    SISD’s   preventive    and

corrective sexual harassment policies.            From the summer of 1995 to

March 1996, Scrivner never complained about Cardenas’s increasingly

offensive behavior.        In fact, when presented with the opportunity

to apprise SISD of Cardenas’s harassment during the investigation

instigated     by   the    anonymous    letter,    Scrivner      chose   to   lie,

reporting that she had not witnessed any sexually harassing conduct

by Cardenas and that he treated her “professionally.”

              By failing to inform SISD of Cardenas’s conduct when

given    an    express    opportunity,       Scrivner    acted    unreasonably.4

Scrivner now asserts that she lied during the investigation because

of Cardenas’s intimidating presence outside the interview room.

Contrary to this claim, Scrivner testified at her deposition that

she was not upset or under stress during the interview but felt

that the district could have conducted the investigation in a more

“professional” manner.

     4
      See, e.g., Ellerth, 524 U.S. at ---, 118 S. Ct. at 2270
(“[W]hile proof that an employee failed to fulfill the
corresponding obligation of reasonable care to avoid harm is not
limited to showing any unreasonable failure to use any complaint
procedure provided by the employer, a demonstration of such failure
will normally suffice to satisfy the employer’s burden under the
second element of the defense.”); Faragher, 524 U.S. at ---, 118 S.
Ct. at 2293 (same).

                                         6
           When an employer initiates a good-faith investigation of

charges of discrimination, it must be able to rely on the evidence

it collects.   By misleading investigators, Scrivner thwarted the

purposes of Title VII and frustrated SISD’s efforts to remedy past

misconduct and prevent future harassment by Cardenas.              When there

is no evidence that the investigation was heavily skewed against a

complainant’s interest, this court cannot sanction such deceptive

conduct.   The appellees have properly set forth the affirmative

defense to Title VII liability for Cardenas’s harassing behavior.5

     C.    Retaliation

           Scrivner   has    also    failed   to    support   a    Title   VII

retaliation cause of action.        The prima facie claim of retaliation

has three elements:        (1) the employee must have engaged in an

activity protected    by    Title    VII;   (2)   the   employer   must    have

subjected the employee to an adverse employment action; and (3) a

causal nexus must exist between the plaintiff’s participation in

the protected activity and the adverse employment action.                  See

Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997).

To carry her ultimate Title VII burden, an employee must also show

that her employer would not have taken the adverse employment

     5
      Although  Scrivner   argues   that  the   Ellerth/Faragher
affirmative defense goes to damages, the Supreme Court itself
characterized the defense as a limit to liability. See Ellerth,
524 U.S. at ---, 118 S. Ct. at 2271 (“In light of our decision,
[the employer] is still subject to vicarious liability for [its
supervisor’s] activity, but [the employer] should have an
opportunity to assert and prove the affirmative defense to
liability.” (emphasis added)).

                                      7
action “but for” the employee’s participation in the protected

activity.   See Long v. Eastfield College, 88 F.3d 300, 305 n.4 (5th

Cir. 1996).   Scrivner cites two actions that allegedly constituted

impermissible retaliation.

            First,    Scrivner    maintains        that     SISD     denied    her

advancement   and     promotion   within    the    district        following   her

complaint against Cardenas.        But Scrivner offers no admissible

evidence of a causal link between the alleged adverse actions and

her filing of a Title VII complaint.         See Grimes v. Texas Dep’t of

Mental Health and Mental Retardation, 102 F.3d 137, 139 (5th Cir.

1996) (conclusory allegations, unsubstantiated assertions, and

subjective beliefs insufficient to support discrimination claim).

            Second,    Scrivner   appears     to    argue     that    Cardenas’s

counterclaim in this action amounts to retaliation.6                   It is not

obvious that counterclaims or lawsuits filed against a Title VII

plaintiff ought to be cognizable as retaliatory conduct under Title

VII. After all, companies and citizens have a constitutional right

to file lawsuits, tempered by the requirement that the suits have

an arguable basis.       See. Fed. R. Civ. Proc. 11.7                Even if the

filing of a counterclaim or lawsuit could violate Title VII,


     6
      The counterclaim was dismissed while the case was pending in
district court.
     7
      But see, e.g., Martinez v. Deaf Smith County Grain
Processors, 583 F. Supp. 1200, 1209 (N.D. Tex. 1984) (employer’s
filing of lawsuit may constitute retaliation under Fair Labor
Standards Act).

                                     8
however, the cases Scrivner relies upon involved counterclaims

filed by employers, not by defendants joined in their individual

capacities.     Cardenas filed his claim against Scrivner in his

individual capacity.      His conduct cannot be attributed to the

district and does not constitute retaliation in violation of Title

VII.

                               IV.   CONCLUSION

          When given the opportunity to report Cardenas’s sexual

harassment during the course of a prompt SISD investigation into

his conduct, Scrivner misled investigators.          Under these circum-

stances, Scrivner’s conduct was so unreasonable that a trial on the

merits of SISD’s affirmative defense would be futile. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511

(1986).   Her    claims   of    illegal    retaliation   are   unsupported.

Although the district court applied a superseded Title VII standard

to the facts, the record is complete for evaluation under the new

standard, and summary judgment was properly granted.

          AFFIRMED.




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