                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 15a0374n.06

                                                   No. 12-5897

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

                                                                                                FILED
                                                                                        May 26, 2015
ROBIN GORDON,                                                                       DEBORAH S. HUNT, Clerk
         Plaintiff - Appellant,

         v.                                                             ON APPEAL FROM THE
                                                                        UNITED STATES DISTRICT
                                                                        COURT FOR THE WESTERN
GORDON ENGLAND, et al.,                                                 DISTRICT OF TENNESSEE

         Defendants - Appellees.                                        OPINION



Before: BOGGS and KETHLEDGE, Circuit Judges; HELMICK, District Judge.

                                           I.        INTRODUCTION

         HELMICK, District Judge. Appellant Robin Gordon appeals the dismissal of her race- and

sex-discrimination claims. The district court granted the motion of Appellees Gordon R. England,

Secretary of the Navy, and the Department of the Navy, for summary judgment, concluding: (1) the

doctrine of equitable tolling should not be applied to Gordon’s untimely race-discrimination claims;

(2) Gordon was entitled to equitable tolling of her sex-discrimination claim; and (3) nonetheless, the

Navy was entitled to summary judgment on Gordon’s sex-discrimination claim. For the reasons

stated below, we affirm.

                                             II.      BACKGROUND

         We previously heard an appeal in this case, after the district court concluded it lacked

subject-matter jurisdiction and dismissed Gordon’s complaint under Rule 12(b)(1). See Gordon v.



*The Honorable Jeffrey J. Helmick, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 12-5897, Gordon v. England, et al.

England (“Gordon I”), 354 F. App’x 975 (6th Cir. 2009). We incorporate the procedural background

of that opinion below:

        Robin Gordon was a civilian employee of the United States Department of the Navy
        in Millington, Tennessee. On October 27, 2000, Gordon filed an Equal
        Employment Opportunity complaint against her supervisor, Ron Rossman, alleging
        racial harassment and reprisal (EEO Complaint I). On June 19, 2001, while EEO
        Complaint I was still pending, Gordon filed a second EEO complaint that restated
        her earlier claims and added a claim for sex discrimination based on sexual
        harassment (EEO Complaint II). The New Orleans EEO office entered an
        acceptance of EEO Complaint II and investigated the sexual harassment charge.
        The case was assigned to an Administrative Law Judge (“ALJ”) in the Memphis
        EEOC office.

        On October 21, 2002, the Navy issued a final agency decision (“FAD”) on EEO
        Complaint I, denying the complaint. The FAD advised Gordon that she had thirty
        days to file an appeal with the EEOC and/or ninety days to file suit under Title VII.
        On June 27, 2003, 249 days after the FAD, Gordon did file a suit (Title VII
        Complaint I) in the United States District Court for the Western District of
        Tennessee. The complaint, filed by attorney J.M. Bailey, named Secretary of the
        Navy Gordon England and the Department of the Navy as defendants. The case
        was dismissed without prejudice on November 8, 2003 for failure to provide
        effective service on Defendants within 120 days. The district court also noted that
        Gordon failed to respond to an order to show cause.

        On April 22, 2004, the EEOC dismissed EEO Complaint II because it had received
        from Mr. Bailey a letter dated April 21, 2004 “indicating that this action has been
        filed in Federal Court and that it will be pursued in Federal Court.” No copy of the
        letter allegedly sent by Gordon's former attorney is in the record.

        On July 27, 2004, Gordon filed a second complaint (Title VII Complaint II) making
        nearly identical claims. The complaint was again filed by Mr. Bailey. That case was
        dismissed on August 22, 2006 based on a motion for voluntary non-suit. On
        February 27, 2007, Gordon sent a letter to the presiding judge stating that she had
        moved to Columbia, South Carolina and was unable to reach Mr. Bailey.
        Furthermore, Mr. Bailey did not inform Gordon that he had dismissed her case. On
        March 6, 2007, Gordon filed a motion for reconsideration of the dismissal of Title
        VII Complaint II. She subsequently filed a motion to withdraw the request for
        reconsideration, and on March 19, 2007 she filed the present suit pro se (Title VII
        complaint III). This complaint includes the same defendants and grounds for
        recovery as the previous suits but includes some additional facts. Defendants filed a
        motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and
        12(b)(6). The motion was granted on March 7, 2008. Gordon timely filed a notice
        of appeal on March 17, 2008 and has been assigned current counsel by this court.




                                                 2
No. 12-5897, Gordon v. England, et al.

Id. at 977-78. We then remanded the case to permit Gordon to amend her complaint to seek

equitable tolling and to give the district court the opportunity to determine whether the equitable-

tolling doctrine applied. Id. at 983.

        On remand, Gordon alleged the Defendants violated Title VII and asserted claims for

(1) hostile work environment due to race discrimination, (2) disparate treatment on the basis of her

race, and (3) sexual harassment. She also argued she is entitled to equitable tolling with regard to all

of her claims.

        Gordon asserts Rossman, her supervisor, discriminated against her because of her race when

he (1) overlooked her for promotion while promoting everyone else in her unit; (2) failed to

complete her performance evaluation properly; (3) interfered with her, and harassed her for making,

leave requests; (4) reduced her lunch break by 15 minutes while maintaining longer breaks for all

other employees; (5) harassed her for “her decision to alter her work schedule to a compressed work

schedule”; (6) required her to contact the office while out on sick leave; (7) limited her ability to

participate in staff meetings; (8) assigned her “additional uncompensated duties”; (9) attempted to

make her assume “the duties of two other female employees”; and (10) assigned her duties

associated with a higher-ranking position but refused to promote her.

        Gordon also asserts she was sexually harassed by her coworkers and that the Navy failed to

adequately address the incident. The district court offered the following summary from the Navy’s

“statement of undisputed material facts”:

        Plaintiff claims that on March 9, 2001, she was the victim of sexual harassment while
        she was in the NMPS Warehouse in Millington, Tennessee. Rossman, Plaintiff's first
        line supervisor, was absent from work on March 9, 2001. Edward McGrath
        (“McGrath”) was acting supervisor in Rossman's absence that day. McGrath was
        not in the building at the time of the March 9, 2001 incident. Plaintiff did not report
        the incident to McGrath upon his return to the building; nor did she report the
        incident to McGrath at any other time. Rather, a few days after the incident, another
        employee whose identity is unknown mentioned that Plaintiff was upset because of
        something that another employee Nathan Edwards (“Edwards”) purportedly did to
        Plaintiff. Plaintiff did not report the March 9, 2001, incident to Rossman until
        March 26, 2001.
                                                   3
No. 12-5897, Gordon v. England, et al.


        On March 26, 2001, Plaintiff provided Rossman with an oral and written account of
        her version of what occurred on March 9, 2001. The written submission was signed
        by Plaintiff and provided that “Nathan [Edwards] grab [sic] me from behind in a
        restraining hold position. I was yelling to him to get off of me. Nathan yelled (while
        still holding and restraining me from moving) to Jane take the picture of me and my
        wife.” Plaintiff also complained that all of the NMPS members with the exception
        of McGrath were present when the incident occurred. Plaintiff identified these co-
        workers as Nathan Edwards, Jane DeGonzaque, Susan Foster, Shannon Armbruster,
        Ken Allen, and Rich Rankin. Plaintiff's March 26, 2001, written account stated that
        as the co-workers who were present during the incident laughed, Edwards held
        Plaintiff tighter. Plaintiff later gave a detailed statement of her allegations to an EEO
        investigator. Plaintiff told the investigator that Edwards “grabbed her from behind,
        put me in a restraint lock position, with his private area on my buttocks and his
        hands wrapped around my breasts.” Plaintiff alleged that others present during the
        incident chanted “get her, get her.” Plaintiff now alleges that this is how she
        described the incident to Rossman on March 26, 2001. Also Plaintiff reported that
        one of the co-workers, Jane DeGonzaque, took a picture of the incident while
        Edwards was holding Plaintiff.

        During the March 26, 2001 meeting with Rossman, Plaintiff told Rossman that she
        wanted Edwards and her co-workers to apologize and that she also wanted
        assurances that similar conduct would not happen again. In response to Plaintiff's
        complaint, Rossman held meetings on March 26, 2001, with Plaintiff, Edwards, and
        Plaintiff's other co-workers in an attempt to investigate the allegations. When
        Rossman inquired about Plaintiff's allegations, her coworkers gave conflicting
        accounts of what had happened. However, all of Plaintiff's coworkers denied that
        the incident was planned or that Jane DeGonzaque had purposely brought a camera
        to work so that she could get a picture of the incident. All of Plaintiff's co-workers
        also denied that they chanted or encouraged Edwards's behavior. Rich Rankin
        reported to Rossman that he was not present in the work area when the incident
        occurred. Rankin later apologized to Plaintiff because he was told to do so by
        Rossman and because he wanted to keep the peace at work. Rankin did not consider
        his apology an admission of guilt.

        Later on March 26, 2001, Rossman scheduled a meeting with Plaintiff and Edwards.
        During the meeting, Edwards apologized to Plaintiff and promised that it would not
        happen again. Rossman scheduled another meeting on March 26, 2001, with the co-
        workers whom Plaintiff had reported were present during the incident. Rossman
        told the employees that Plaintiff felt she deserved an apology from each of them, and
        Rossman urged them to do so. The co-workers disagreed about Plaintiff deserving
        an apology from them, yet all of them agreed to make the apology and did so on the
        morning of March 27, 2001.

        Approximately nine weeks after the March 9, 2001 incident, Rossman obtained a
        copy of the picture taken by Jane DeGonzaque during the incident. Although the
        photograph was out of focus, it provided an image of Edwards grabbing Plaintiff
        and holding her in a different manner than the way Edwards had previously
        described to Rossman in his account of the incident. After Rossman saw the
                                                   4
No. 12-5897, Gordon v. England, et al.

        photograph, he met with Edwards on May 22, 2001. At that time, Rossman
        informed Edwards that he would serve a three-day suspension without pay from
        June 5 through June 7, 2001. Rossman made the decision to suspend Edwards
        because as a result of further investigation, Rossman concluded that Edwards had
        not been truthful in his initial statements about the incident. Rossman also directed
        Edwards to attend the next scheduled class on the prevention of sexual harassment.

Gordon v. England, No. 07-2223, 2012 WL 2790375, at *2-3 (W.D. Tenn. July 9, 2012) (citations and

footnotes omitted). Subsequently, Edwards was terminated. The Navy asserts he was fired for

failing to attend the sexual-harassment-prevention course, while Gordon asserts she was told

Edwards was terminated for disciplinary reasons unrelated to the incident.

        The district court declined to apply the equitable-tolling doctrine to Gordon’s race-

discrimination claims. The district court noted Gordon did not file suit regarding EEO Complaint I

until well after the 90-day limitations period and concluded the equitable-tolling doctrine did not

apply, in part because both Gordon and her attorney received the right-to-sue letter and had actual

notice of the filing deadline. The district court also concluded Gordon is entitled to equitable tolling

of her sexual-harassment claim, raised in EEO Complaint II. This claim was timely filed but

subsequently dismissed after Bailey filed a motion for voluntary nonsuit without consulting or

informing Gordon. Following this dismissal, Bailey failed to contact Gordon or return her phone

calls. The district court concluded Bailey’s course of conduct constituted an effective abandonment

of his client and warranted application of the equitable-tolling doctrine.          The district court

proceeded to examine the merits of Gordon’s sexual-harassment claim and granted the Navy’s

motion for summary judgment, concluding Gordon could not prove she was subjected to a hostile

work environment on the basis of her sex because the Navy’s response to Gordon’s sexual-

harassment claims “was adequate and reasonable.” Gordon, 2012 WL 2790375, at *16.

        Proceeding pro se, Gordon filed a notice of appeal and a motion for appointment of

counsel. While that motion was pending, she filed her appellate brief as well as a reply brief

responding to the Navy’s appellee brief. Gordon argues (1) the district court should have held an
                                                   5
No. 12-5897, Gordon v. England, et al.

evidentiary hearing before granting the Navy’s motion for summary judgment; (2) the Navy exposed

her to the possibility of identity theft by putting her personal information on a public website;

(3) the district court erred by ordering her to sign a medical release while not requiring the Navy to

respond to her discovery requests; (4) the district court erred in granting summary judgment on her

sexual-harassment claim; (5) the district court erred in denying her request for equitable tolling on

her race-discrimination claims because her attorney was ineffective and incapacitated; and (6) the

district court erred in denying her earlier-appointed attorney’s request to withdraw as counsel. We

subsequently granted Gordon’s motion for appointment of counsel. Appointed counsel filed a brief

challenging the district court’s grant of summary judgment. The Navy filed a supplemental brief in

response.

                                           III.     ANALYSIS

    A. RACE DISCRIMINATION

        Gordon argues she is entitled to equitable tolling of her race-discrimination claims because

Bailey’s failure to file a lawsuit after withdrawing EEO Complaint I caused her claims to be

untimely. We review a district court’s equitable-tolling decision for an abuse of discretion. Truitt v.

Cnty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998). The equitable-tolling doctrine has been applied

“only sparingly.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). The district court

concluded Gordon could not show Bailey misled her by informing her he had filed the complaint

when he in fact had not, and therefore Gordon was not entitled to equitable tolling because Bailey’s

actions constituted “garden variety neglect.” Gordon v. England, 2012 WL 2790375, at *10.

        While Gordon now claims Bailey was not capable of representing her at the time he

withdrew EEO Complaint I, she offers only a 1995 report from the Tennessee Board of

Professional Responsibility in which Bailey was ordered to enter treatment for drug addiction and

psychiatric issues. She failed to present this report in the first instance to the district court. As a

result, she has waived her right to raise this point on appeal. See, e.g., United States v. Universal Mgmt.
                                                    6
No. 12-5897, Gordon v. England, et al.

Servs. Inc., Corp., 191 F.3d 750, 758 (6th Cir. 1999). Moreover, Gordon offers no evidence to support

her implication that Bailey was incapable of representing her based on the Board of Professional

Responsibility’s seven-year-old order. Gordon fails to show the district court abused its discretion

in declining to apply equitable tolling to her race-discrimination claims.

    B. HOSTILE WORK ENVIRONMENT

        Gordon argues the district court erred in granting the Navy’s summary-judgment motion as

to the merits of her hostile-work-environment claim. We review a district court’s grant of summary

judgment de novo. Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012). Summary

judgment is appropriate if the movant demonstrates there is no genuine dispute of material fact and

that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

        Title VII prohibits an employer from requiring its employees “to work in a discriminatorily

hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citing Meritor

Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). An employee establishes a hostile-work-

environment claim by proving: (1) she is a member of a protected class; (2) she was subjected to

unwelcome harassment based on her sex; (3) the harassment unreasonably interfered with her work

performance and “created an objectively intimidating, hostile, or offensive work environment”; and

(4) the employer is liable. Warf v. U.S. Dep’t of Veterans Affairs, 713 F.3d 874, 878 (6th Cir. 2013).

The employee can prove the third element of this claim by showing the conduct is “severe or

pervasive enough to create an environment that a reasonable person would find hostile or abusive

and the victim must subjectively regard that environment as abusive.” Id. (quoting Bowman v. Shawnee

State Univ., 220 F.3d 456, 463 (6th Cir. 2000)). A court may consider “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 the employee’s work performance.”

Warf, 713 F.3d at 878. The Navy does not dispute Gordon is a member of a protected class, that


                                                    7
No. 12-5897, Gordon v. England, et al.

Edwards sexually harassed her, or that Gordon subjectively believed her work environment was

hostile.

           Edwards assaulted Gordon on March 9, 2001, in front of four other coworkers – Jane

DeGonzaque, Susan Foster, Shannon Armbruster, and Ken Allen. Edwards grabbed Gordon from

behind, wrapped his hands around her breasts, and pressed and held his genitals against Gordon’s

buttocks. Her coworkers did not step in and stop Edwards – in fact, DeGonzaque took a picture.

Gordon reported the assault to Rossman, her supervisor, on March 26, 2001. Rossman interviewed

Gordon’s coworkers, all of whom denied the incident occurred in the way Gordon reported.

Rossman instructed all five to apologize to Gordon.

           Subsequently, Rossman obtained a copy of the photograph DeGonzaque took. Rossman

stated “[t]he photograph was out of focus, but it provided an image of Nathan Edwards grabbing

[Gordon] and holding her in a manner different from how he had previously described to me.” R.

138-6 at 3 (Page ID # 797). On May 22, 2001, Rossman suspended Edwards for three days without

pay for lying during the initial investigation and ordered him to attend a sexual-harassment-

prevention class.      Despite Gordon’s request, Rossman did not take further action against

DeGonzaque, Foster, Armbruster, or Allen.

           While the conduct Gordon complains of is deplorable and unacceptable in any workplace,

precedent prevents Gordon from maintaining a hostile-work-environment claim because she only

points to one incident of sexual misconduct. We previously have stated a complaint like Gordon’s is

“more akin to a discrete act, which is decidedly not actionable as a hostile-work-environment claim.”

Clay v. United Parcel Serv., Inc., 501 F.3d 695, 708 (6th Cir. 2007) (citing Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 115-16 (2002)).

           Gordon argues her allegations of a racially hostile work environment lend support to her

sexual-discrimination claim. While we have held nonsexual conduct can constitute evidence of

sexual harassment, an employee must show the acts would not have occurred but for her sex.
                                                    8
No. 12-5897, Gordon v. England, et al.

Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999). Gordon fails to offer any evidence

to establish this connection.

    C. MISCELLANEOUS MATTERS

        As we noted above, Gordon also argues in her pro se appellant brief that (1) the district

court should have held an evidentiary hearing before granting the Navy’s motion for summary

judgment; (2) the Navy exposed her to the possibility of identity theft by putting her personal

information on a public website; (3) the district court erred by ordering her to sign a medical release

while not requiring the Navy to respond to her discovery requests; and (4) the district court erred in

denying her earlier-appointed attorney’s request to withdraw as counsel. Gordon failed to raise

these arguments before the district court and we will not review them for the first time on appeal.

White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990) (citing Boddie v. Am. Broad. Cos.,

Inc., 881 F.2d 267, 268 n.1 (6th Cir. 1989)).

                                         IV.    CONCLUSION

        For the reasons stated above, we AFFIRM the district court’s grant of summary judgment

in favor of the Appellees.




                                                   9
