     Case: 12-20469       Document: 00512182920         Page: 1     Date Filed: 03/21/2013




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

                                                                            FILED
                                                                          March 21, 2013

                                     No. 12-20469                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



STEPHON WIGGINS,

                                                  Plaintiff-Appellant
v.

ST. LUKE’S EPISCOPAL HEALTH SYSTEM,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  4:10-CV-4209


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Stephon Wiggins appeals the district court’s grant of summary judgment
dismissing his claims for sexual harassment (hostile work environment) and
retaliation under Title VII, and his claim for intentional infliction of emotional
distress, against St. Luke’s Episcopal Health System.1 For the reasons provided

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
        St. Luke’s Episcopal Health System was improperly named in the complaint as the
Defendant. Appellee’s name is “St. Luke’s Episcopal Hospital.” The district court properly
noted that the misnomer does not affect the outcome of the case.
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in the summary judgment order, and briefly recounted below, we affirm the
district court’s judgment.
                             I. BACKGROUND
      Wiggins was an employee of St. Luke’s Episcopal Hospital (“St. Luke’s”)
from October 7, 1996 to November 20, 2009. He became a Senior Admitting
Interviewer in 2002. Wiggins’s position required him to register and admit
patients, provide financial assistance to patients, and verify patient insurance
information. During the period relevant to this lawsuit, his immediate
supervisor was Carlotta Hudson-Creese, and he ultimately reported to the
manager of the department, Michelle Hilburn.
      On October 13, 2009, Wiggins had a disagreement with a co-worker
regarding the accommodations for a patient waiting to be discharged from the
admitting area. The next day, Wiggins confronted that co-worker about their
disagreement. Hudson-Creese conducted an investigation of the incident and
took written statements from witnesses, including Wiggins. Hudson-Creese
concluded that Wiggins had acted unprofessionally, and that witnesses had
perceived his behavior as threatening. She told Wiggins that his actions were
inappropriate, but he disagreed with her assessment of his conduct and refused
to acknowledge wrongdoing. Hudson-Creese and Hilburn reported the incident
and written statements to the St. Luke’s Employee Relations department for
guidance. After reviewing the investigative findings and consulting with other
St. Luke’s personnel, Antrenette L. Carr, an employee relations specialist,
decided to place Wiggins on a 90-day probation, effective November 3, 2009.
      In a November 4, 2009 letter to William Brosius, the head of his
department, Wiggins alleged that other employees had conspired to get him
disciplined, and indicated that he believed he had been subjected to sexual
harassment. As part of the St. Luke’s grievance procedure, Wiggins met with
Brosius on November 10 to discuss the circumstances that led to his probation.

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                                 No. 12-20469
At this meeting, Wiggins reiterated the concerns expressed in the letter: that
other employees had conspired to get him disciplined, and that he had been a
victim of sexual harassment in the workplace. Brosius found no support for
Wiggins’s alleged conspiracy and asked Wiggins to provide more information
regarding the sexual harassment claim. After the meeting, Brosius determined
that the probation decision would stand.
      St. Luke’s contends that while Wiggins was on probation he continued to
act in an unprofessional, disruptive, and insubordinate way to Hudson-Creese
and his co-workers. St. Luke’s received numerous complaints from co-workers
alleging that they were uncomfortable with Wiggins’s intimidating behavior.
Because Wiggins was on probation at the time of this misconduct, Employee
Relations, with Brosius’s approval, decided to terminate Wiggins’s employment
effective November 20, 2009.
      After his termination, Wiggins filed a complaint against St. Luke’s that he
later amended. In his Second Amended Complaint, Wiggins asserted the
following claims against St. Luke’s: sexual harassment and retaliation under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and
intentional infliction of emotional distress (“IIED”) under Texas law. St. Luke’s
filed a motion for summary judgment seeking dismissal of all claims. After a
series of objections and replies, the district court held a hearing on St. Luke’s
motion for summary judgment in which the parties presented their arguments.
On June 22, 2012, the district court granted St. Luke’s motion and dismissed all
of Wiggins’s claims. Wiggins timely appealed.
                               II. DISCUSSION
A.    Standard of Review
      We review a grant of summary judgment de novo. Reed v. Neopost USA,
Inc., 701 F.3d 434, 438 (5th Cir. 2012). Summary judgment is proper if there is
no genuine dispute as to any material fact and the moving party is entitled to

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                                 No. 12-20469
judgment as a matter of law. Fed. R. Civ. P. 56(a). We view the evidence in the
light most favorable to the nonmovant. United Fire & Cas. Co. v. Hixson Bros.,
Inc., 453 F.3d 283, 285 (5th Cir. 2006). We may affirm a grant of summary
judgment on any ground supported by the record, even one different from that
relied on by the district court. See Reed, 701 F.3d at 438.
B.    Sexual Harassment
      Wiggins claims that his coworkers sexually harassed him in violation of
Title VII. To prevail on this claim, he must prove that the harassment resulted
in a hostile or abusive work environment. See Harvill v. Westward Commc’ns,
L.L.C., 433 F.3d 428, 434 (5th Cir. 2005). To establish a prima facie case of
harassment, a plaintiff must show: (1) he belongs to a protected group; (2) he was
subjected to unwelcome harassment; (3) the harassment was based upon the
protected status; (4) the harassment was sufficiently severe or pervasive so as to
alter the conditions of employment and create an abusive working environment;
and, if the harassment is perpetuated by a co-worker, the plaintiff must also
show (5) that his employer knew or should have known of the harassment and
failed to take prompt remedial action. Id.
      The district court held that Wiggins has failed to establish a prima facie
case because “nothing [he] describes even comes close to the type of severe or
pervasive harassment that is actionable in the Fifth Circuit.” We agree.
      “For sexual harassment to be actionable [under Title VII], it must be
sufficiently severe or pervasive ‘to alter the conditions of [the victim’s]
employment and create an abusive working environment.’” Harvill, 433 F.3d at
434 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (alteration
in original)). We look at the totality of the circumstances to determine whether
an environment is “hostile” or “abusive” under Title VII, including factors such
as the frequency and severity of the discriminatory conduct; whether the
challenged conduct was physically threatening or humiliating; and whether it

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                                   No. 12-20469
unreasonably interferes with an employee’s performance at work. Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “To be actionable, the challenged
conduct must be both objectively offensive, meaning that a reasonable person
would find it hostile and abusive, and subjectively offensive, meaning that the
victim perceived it to be so.” Shepherd v. Comptroller of Pub. Accounts, 168 F.3d
871, 874 (5th Cir. 1999) (citing Harris, 510 U.S. at 21-22).
      Wiggins was subjectively offended by the few, isolated sexual comments
that his female coworkers allegedly made, and the brief moments of physical
contact with his female supervisor as detailed in the district court’s opinion.
However, our prior holdings, as cited by the district court, indicate that such
conduct was not so severe or pervasive as to rise to the level of actionable
harassment in this circuit. See e.g., Shepherd, 168 F.3d at 872, 874 (references
to plaintiff’s nipples and thighs and multiple instances of touching not severe);
Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 321-22, 326 (5th Cir. 2004)
(sexual comments and touching, including an attempted kiss, not severe or
pervasive). Accordingly, we affirm the the district court’s grant of summary
judgment as to Wiggins’s sexual harassment claim.
C.    Title VII Retaliation
      Wiggins also claims that St. Luke’s retaliated against him in violation of
Title VII for complaining to management about the alleged instances of sexual
harassment. We analyze Title VII retaliation claims under the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This framework has three steps: first, a plaintiff must set out a prima facie case
of retaliation; if the plaintiff sets out a prima facie case, the burden shifts to the
defendant to state a legitimate, non-discriminatory reason for its action; if the
defendant provides such a reason, the plaintiff must prove that it is pretextual.
See Septimus v. Univ. of Houston, 399 F.3d 601, 607-08 (5th Cir. 2005).



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       To establish a prima facie case of Title VII retaliation, a plaintiff must
show that he engaged in a protected activity under Title VII, that he was subject
to an adverse employment action, and that there was a causal link between the
protected activity and the adverse action. See Ikossi–Anastasiou v. Bd. of
Supervisors of La. State Univ., 579 F.3d 546, 551 (5th Cir. 2009). The district
court held that Wiggins failed to establish a prima facie case of retaliation
because he did not show a causal link between his complaints about the alleged
harassment and his subsequent termination. We agree.
       Wiggins first mentioned “sexual harassment” to Brosius in a letter sent
after the initial incident and discipline that resulted in his termination. The
temporal proximity between the protected activity and Wiggins’s termination
thus owes to Wiggins’s delay in informing Brosius of the alleged harassment.
Moreover, the evidence does not show that Hudson-Creese knew about the
harassment allegations when she asked Employee Relations for guidance as to
the appropriate disciplinary steps to take with Wiggins. For these reasons, we
find that Wiggins has not established a causal link between his complaint to
Brosius and his termination. Accordingly, we affirm the district court’s grant of
summary judgment as to this claim.2
D.     IIED
       Although Wiggins does not expressly address his IIED claim in his brief,
we briefly address it because of his pro se status. In short, the district court
correctly noted that if sexual harassment underlies an employee’s common law
tort claims against his employer, then those claims are preempted under Texas
law by the Texas Commission on Human Rights Act, regardless of whether the
plaintiff brings an action under the Act. Waffle House, Inc. v. Williams, 313

       2
        If we were to find that Wiggins set forth a prima facie case of retaliation, his claim
would nevertheless fail because St. Luke's has articulated a legitimate, nondiscriminatory
reason for the termination decision (Wiggins's work conduct), and Wiggins has not offered
evidence to prove that this reason was mere pretext.

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S.W.3d 796, 803 (Tex. 2010). Accordingly, we affirm the district court’s grant of
summary judgment as to Wiggins’s IIED claim.
                              III. CONCLUSION
      For the reasons given, we AFFIRM the district court’s judgment.




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