                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-31109
                          Summary Calendar



     THOMAS KREAMER

                      Plaintiff - Appellant

     v.

     HENRY’S TOWING; TETRA APPLIED TECHNOLOGIES LP

                      Defendants - Appellees



          Appeal from the United States District Court
              for the Eastern District of Louisiana
                        No. 2:03-CV-3139-N


Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     In this Title VII same-sex harassment action, plaintiff-

appellant Thomas Kreamer appeals the district court’s grant of

summary judgment in favor of Tetra Applied Technologies,

Kreamer’s former employer.   For the reasons stated below, we

AFFIRM.




     *
        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that this opinion should not be published and is not precedent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.
                I. FACTUAL AND PROCEDURAL BACKGROUND

     From December 2001 to May 2002, Thomas Kreamer worked for

Tetra Applied Technologies (“Tetra”) as a deckhand on a tugboat

named the Bacchus.    Each tugboat in Tetra’s fleet had two-member

crews consisting of a captain and a deckhand.    The tugboats were

assigned to various oil rigs located twenty miles from land, and

their crews worked and slept on the boats in fourteen-day

hitches.    When disciplinary issues with Tetra employees arose,

each captain had the authority to discipline his own boat’s

deckhand, but a captain could not discipline a deckhand from

another boat.    Tetra’s tool pusher oversaw Tetra’s operations on

the rig itself and had the authority to recommend disciplinary

measures.    Tetra also employed a human resources manager, Sid

Falgout, who handled staff disciplinary problems.

     Kreamer alleges that during his employment with Tetra,

Carroll Carrere, a deckhand from another Tetra boat assigned to

the same Chevron-Texaco oil rig as the Bacchus, sexually harassed

him over a six-day period in May 2002.   Kreamer regarded Carrere

as a “loud-mouth” type, known to engage in excessive horseplay,

argue, and use foul language with his co-workers.      Tetra, on the

other hand, believed Carrere to be a competent employee who

sometimes participated in an above-average level of roughhousing.

Prior to May 2002, Falgout had never received a complaint that

Carrere had behaved in a sexually offensive manner toward any of



                                 -2-
his co-workers.1

     Kreamer asserts that the alleged sexual harassment began on

May 9, 2002, when Carrere approached Kreamer from the side and

grabbed him between the legs.    Although no one was present to

witness the incident, Kreamer reported the occurrence to the

captain of the Bacchus, Darrell Naquin, who said that he would

inform the rig’s tool pusher and Carrere’s captain, Wayne Lambas.

Carrere allegedly grabbed Kreamer in a similar manner three more

times on that day, at one point telling Kreamer that he “would

like to compare packages.”    Later that day, Naquin and Lambas sat

down with Carrere and instructed him to stop annoying Kreamer.

That night, Kreamer began documenting these incidents in a

notebook where he continued to record similar interactions with

Carrere that occurred over the next few days.

     Kreamer alleges that Carrere continued his harassing

behavior throughout that week, directing offensive gestures and

whistles at him when they came into contact.    On May 10, Carrere

allegedly approached Kreamer from the front and again grabbed him

between the legs.    In response to Kreamer’s complaint, Naquin

again spoke with Lambas and asked him to instruct Carrere to stop

bothering Kreamer.    Kreamer also alleges that on May 11, while he

     1
      Tetra had previously received complaints regarding
Carrere’s excessive horseplay, although nothing in the record
indicates that his behavior was sexual in nature. In one
instance, Carrere received a written warning for throwing eggs at
a co-worker. In another instance, a cook had complained that
Carrere snuck up behind him and grabbed him on the sides.

                                 -3-
was attempting to tie up the Bacchus to Carrere’s boat at the end

of his shift, Carrere twice threw the rope off the bit.    Kreamer

reported this incident to Naquin, who spoke with Carrere

personally and again reported Carrere’s behavior to Lambas.

Next, on May 12, Carrere allegedly snuck up behind Kreamer and

yet again grabbed him between the legs.   Kreamer again reported

the incident to Naquin, and Lambas once more warned Carrere to

stay away from Kreamer and refrain from engaging in this type of

conduct.   On May 13, Carrere again disrupted Kreamer’s attempt to

tie up the boats.   In response to Kreamer’s protests, Carrere

blew a kiss in Kreamer’s direction.    Kreamer also claims that one

morning during the week in question, he awoke to find Carrere

standing in his sleeping quarters, staring at him.   Carrere did

not say anything to Kreamer, did not touch him, and did not try

to get into his bed.   When Kreamer yelled at him to “get the hell

out,” Carrere left without speaking.   Kreamer subsequently

reported this incident to Naquin.

     Despite Naquin’s and Lambas’s warnings to leave Kreamer

alone, Carrere’s behavior allegedly escalated on May 14.   That

morning, Carrere grabbed Kreamer once, and Kreamer told him to

stop.   Later that day, Carrere again threw the rope off the bit

as Kreamer attempted to tie the boats together.   Kreamer also

alleges that, at the end of that night’s shift, Carrere attempted

to put a hot lighter between Kreamer’s legs and then burned

Kreamer’s wrist with the lighter during a meeting in the galley

                                -4-
of the Bacchus.   Both Naquin and Lambas were present for the

incident, as was Del Deshotel, the Chevron-Texaco representative

on the rig.   Kreamer asserts that immediately after this

incident, he said to Deshotel, “This is the kind of shit I’m

tired of” and walked out of the galley.   Later that night,

Naquin, Lambas, and Deshotel each checked on Kreamer and assured

him that Carrere would be removed from the rig the next day.

     By the next day, May 15, Naquin had spoken with Tetra’s tool

pusher about Carrere’s behavior, and Carrere had received orders

from Tetra’s shore personnel to leave the rig and return to the

dock without completing his hitch.    That morning before he left,

Carrere approached Kreamer in the engine room of the Bacchus and

grabbed him from behind as Kreamer was bending over the engines.

According to Kreamer, Carrere then told him that he “would like

to f--- that piece of ass.”   Kreamer reported this incident to

Naquin, who told him that Carrere was leaving that day.     After

Carrere left, Kreamer did not encounter him again throughout the

remainder of his hitch, although he claims that he was exposed to

taunting and embarrassing comments about Carrere from other crew

members.   Falgout, Tetra’s human resources manager, formally

disciplined Carrere upon Carrere’s return to shore.

     Upon the completion of his hitch, Kreamer complained to

Falgout in person about Carrere.   Specifically, Kreamer contended

that Tetra should have fired Carrere for his conduct rather than

giving him a warning and transferring him mid-hitch.   Falgout

                                -5-
explained that he had already spoken with Carrere about his

behavior.   Falgout also reviewed Kreamer’s notes with him and

suggested that he add more details to clarify what had occurred

during each encounter with Carrere.    Neither Kreamer nor Falgout

ever used the term “sexual harassment” while the incidents were

occurring or afterward when they met to discuss Kreamer’s

complaints.   Likewise, Kreamer’s notes do not explicitly reflect

that Kreamer interpreted Carrere’s conduct to have been sexual in

nature.

     Soon after his meeting with Falgout, Kreamer suffered an

injury that prevented him from returning to work for Tetra until

August 13, 2002.   On that day, Kreamer saw Carrere for the final

time when Carrere’s tugboat passed the Bacchus, and Carrere

whistled at Kreamer.   The day after Kreamer returned to work on

the Bacchus, Tetra sold its operations to Henry’s Marine; thus,

August 13 marked Kreamer’s final day as a Tetra employee.

     Kreamer filed a lawsuit in the United States District Court

for the Eastern District of Louisiana, claiming that he was

subjected to a hostile work environment based on sexual

harassment in violation of Title VII of the Civil Rights Act of

1964.   The district court granted Tetra’s motion for summary

judgment, holding that Kreamer failed to prove (1) that the

harassment was based on sex, and (2) that Tetra failed to take

prompt remedial action.    Kreamer v. Henry’s Marine, No. 03-3139

(E.D. La. Oct. 7, 2004).   This appeal followed.

                                 -6-
                          II. DISCUSSION

     A. Standard of Review

     We review a grant of summary judgment de novo, applying the

same standard that the district court applied.       Chaplin v.

NationsCredit Corp., 307 F.3d 368, 371 (5th Cir. 2002).       Summary

judgment is appropriate where the moving party establishes that

“there is no genuine issue as to any material fact and that [it]

is entitled to a judgment as a matter of law.”       FED. R. CIV. P.

56(c).   The party moving for summary judgment “bears the burden

of identifying those portions of the record it believes

demonstrate the absence of an issue of material fact.”       Lincoln

Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).        The

burden then shifts to the non-moving party to “show the existence

of a genuine fact issue for trial.”     Id.   We view the evidence

and all reasonable inferences from the evidence in the light most

favorable to the non-moving party.     Id. at 350.

     B. Analysis

     Title VII of the Civil Rights Act of 1964 prohibits

workplace discrimination, including discrimination based on sex.

42 U.S.C. § 2000e-2(a)(1) (2000).     To establish a prima facie

case for a hostile work environment claim based on sexual

harassment, a plaintiff must prove that: (1) he belongs to a

class protected under the statute; (2) he was subject to

unwelcome sexual harassment; (3) the harassment was based on sex;


                                -7-
(4) the harassment affected a term, condition, or privilege of

employment; and (5) the employer knew or should have known of the

harassment and failed to take prompt remedial action.     DeAngelis

v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.

1995); Jones v. Flagship Int’l, 793 F.2d 714, 719 (5th Cir.

1986).   Based on our review of the undisputed factual record, we

hold that Tetra took prompt remedial action as a matter of law

and affirm the district court’s grant of summary judgment.2

     To constitute “prompt remedial action,” an employer’s

response to a harassment complaint must be “reasonably

calculated” to end the harassment.     Skidmore v. Precision

Printing & Packaging, 188 F.3d 606, 615 (5th Cir. 1999).       To be

reasonably calculated to end the harassment, an employer’s

actions need not end the harassment instantly.     See Dornhecker v.

Malibu Grand Prix Corp., 828 F.2d 307, 309 (5th Cir. 1987)

(“Since the demise of . . . dueling, society seldom has provided

instantaneous redress for dishonorable conduct.”); see also

Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262-63 (5th

Cir. 1999) (holding that employer took prompt remedial action

when it suspended harasser one month after the incident

occurred).   Likewise, an employer need not impose the most severe

punishment to comply with Title VII.     Landgraf v. USI Film


     2
      Because we hold that Tetra took prompt remedial action as
a matter of law, we need not address whether Carrere’s conduct
constituted harassment based on sex.

                                -8-
Prods., 968 F.2d 427, 430 (5th Cir. 1992); see also Skidmore, 188

F.3d at 615-16 (holding that the employer took prompt remedial

action when it transferred the harasser to a different shift

rather than firing him); Indest, 164 F.3d at 262-63 (holding that

a one-month suspension constituted prompt remedial action).

Instead, determining what is reasonably calculated to end the

harassment is a highly contextual inquiry:

     What is appropriate remedial action will necessarily
     depend on the particular facts of the case--the
     severity and persistence of the harassment, and the
     effectiveness of any initial remedial steps. . . .
     [N]ot every response by an employer will be sufficient
     to discharge its legal duty. Rather, the employer may
     be liable despite having taken remedial steps if the
     plaintiff can establish that the employer’s response
     was not “reasonably calculated” to halt the harassment.

Skidmore, 188 F.3d at 615-16 (quoting Waltman v. Int’l Paper Co.,

875 F.2d 468, 479 (5th Cir. 1989)).   Accordingly, we assess the

employer’s remedy proportionately to the seriousness of the

offense and in light of “the company’s lines of command,

organizational format[,] and immediate business demands.”

Dornhecker, 828 F.2d at 309.

     In this case, Tetra’s response was reasonably calculated to

end the harassment given the duration and severity of the

harassment.   The undisputed facts reflect that the harassment

lasted a total of six days, and that Carrere never physically

harassed Kreamer again after Tetra transferred Carrere on May




                                -9-
15.3       See Skidmore, 188 F.3d at 615-16 (holding that the employer

took prompt remedial action when it admonished the harasser and

transferred the plaintiff to a new shift, terminating the hostile

work environment).       Because Kreamer and Carrere did not work on

the same boat, they came into contact only sporadically over that

six-day period; thus, the harassment was not continuous but

rather a series of isolated incidents.       See Indest, 164 F.3d at

262-63 (holding that the employer’s response was appropriate when

it disciplined the harasser and separated him from the plaintiff

after four reported incidents of harassment during a business

trip).       Moreover, most of Carrere’s behavior was bullying rather

than sexual in nature, a fact reflected in Kreamer’s own notes

and contemporaneous accounts of the incidents to his superiors.

Even though Kreamer never specifically complained of sexual

harassment, Tetra put an end to the behavior in less than a week.

See Carmon v. Lubrizol Corp., 17 F.3d 791, 794-95 (5th Cir. 1994)

(holding that the employer took prompt remedial action when the



       3
      The single whistling incident of August 13 is not
sufficient proof that Tetra’s actions were not reasonably
calculated to end the harassment. Tetra had taken action to
separate Kreamer and Carrere, and the physical harassment did in
fact stop altogether after May 15. That Kreamer’s and Carrere’s
tugboats, no longer assigned to the same oil rig, would have
passed each other on the ocean at the same time three months
later was merely a fortuitous occurrence that Tetra could not
have prevented short of firing Carrere, which it was not legally
obligated to do. See Landgraf, 968 F.2d at 430 (noting that
“Title VII does not require that an employer use the most serious
sanction available to punish an offender”).

                                   -10-
employer disciplined the alleged harasser within three days of

the plaintiff’s initial complaint even though the employer’s

investigation revealed that horseplay, not sexual harassment, had

occurred).

     Likewise, Tetra’s response was consistent with Title VII

given the Tetra chain of command and the realities of conducting

business on an oil rig twenty miles from land.    See Waymire v.

Harris County, 86 F.3d 424, 429 (5th Cir. 1996) (taking into

account the employer’s “lines of command and organizational

format” in determining that a three-month investigation into a

harassment claim was prompt remedial action).    From the very

first day that Kreamer complained, May 9, Tetra personnel took

action to end the harassment.   In response to Kreamer’s

complaints, Tetra’s on-site supervisors (the tugboat captains and

the rig’s tool pusher) gave Carrere a series of warnings to leave

Kreamer alone, consistent with Tetra’s chain of command and

disciplinary policy.   On May 14, when it became apparent that

these warnings were not effective, the on-site supervisors

contacted Tetra’s shore personnel, who transferred Carrere the

next day even though Carrere was in the middle of a two-week

hitch.    Compare Dornhecker, 828 F.2d at 309 (holding that the

employer took prompt remedial action when it assured the

plaintiff, who was harassed on a business trip, that she would no

longer have to work with the harasser after the business trip

ended).

                                -11-
     Kreamer has presented no evidence establishing any issue of

material fact that contradicts the above findings.   His bald

contentions that Tetra’s response did not constitute prompt

remedial action because the harassment did not end

instantaneously and because Tetra chose to discipline and

transfer Carrere rather than fire him are insufficient to survive

summary judgment.   See id.

                          III. CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




                               -12-
