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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-30574                    United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                          June 5, 2018
SHELITA TUCKER,
                                                                        Lyle W. Cayce
              Plaintiff - Appellant                                          Clerk


v.

UNITED PARCEL SERVICE, INCORPORATED,

              Defendant – Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CV-611


Before JOLLY, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Shelita Tucker appeals the grant of summary judgment in favor of her
employer, United Parcel Service, Inc., (“UPS”) on her hostile work environment
and constructive discharge claims under Title VII of the Civil Rights Act of
1964 and the Louisiana Employment Discrimination Law. 1 For the reasons
explained below, we AFFIRM the district court’s dismissal of her claims.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1The summary judgment order also dismissed retaliation claims, but Tucker does not
challenge the dismissal of those claims on appeal.
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                               I. Background
      Tucker worked for UPS as a local sort supervisor at the Port Allen,
Louisiana facility from 2012 to 2015. She was responsible for making sure all
of the incoming packages were sorted and then loaded for delivery at the end
of the night. She also had authority to discipline her subordinates, though the
full scope of that authority is unclear from the record. One of her subordinates
was Larry McCaleb, a union employee whose responsibilities included
unloading the package cars when needed.         Tucker alleges that McCaleb
sexually harassed her for approximately two years, from August 2012 through
July 2014. The most severe act of alleged harassment occurred on July 24,
2014, when Tucker claims that McCaleb pressed his penis against her
backside.   Shortly thereafter, Tucker found the business manager, Darin
Williams, and told him what happened. Williams immediately had Tucker
write a statement, told her McCaleb had been taken out of service pending an
investigation, and offered her the opportunity to leave for the evening, which
she accepted.
      Tucker’s written statement says that the July 24 incident occurred when
she was unloading a package car after noticing there were no unloaders
around. As she was unloading, McCaleb entered the package car and told her
he was going to finish the job. Tucker instructed him to unload one of the other
cars and turned back around to continue her work. When she began unloading
the car again, McCaleb “walked up behind [her] and pushed his private area
(penis) into [her] backside.” Tucker immediately turned around and McCaleb
was “right up on [her].” She told him “you better back up off of me right now!”
In response, McCaleb “threw his hands up in the air and said ‘alright’ then he
backed up and walked out of the truck.” Later that night McCaleb also gave a
statement to Williams and reportedly said that he inadvertently bumped into
Tucker.

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      The next day, Friday, July 25, Tucker initiated a complaint with the UPS
Compliance Line. The call notes indicate that after describing the alleged
offense and an earlier incident of verbal harassment, Tucker expressed
concerns about whether McCaleb would be present at work and that she did
not want to see him again. Williams had been advised by the labor manager
that, without witnesses to the incident, he could not stop McCaleb from
returning to work. When Tucker showed up for work she was notified of
McCaleb’s presence. To avoid any additional conflict, Williams gave Tucker
the day off with full pay. The following week, Tucker took a scheduled vacation
and filed a report against McCaleb with the Port Allen Police Department.
      While Tucker was on vacation, UPS commenced an investigation into the
matter and, apparently operating on new information from labor management,
suspended McCaleb pending the investigation’s outcome. UPS was unable to
confirm whether McCaleb’s conduct was intentional. Thus, after a nearly two
week suspension, McCaleb was permitted to return to work.             UPS took
corrective action by meeting with McCaleb about the investigation, counseling
him about workplace policies on professionalism and harassment, and
ultimately prohibiting him from going to the work area where Tucker was
assigned. About two months after his return, on October 15, 2014, McCaleb
was convicted of simple battery for the incident and sentenced to ninety days
in jail, one-year supervised release, and ordered to pay a fine plus court costs
and a supervision fee.     UPS did not take any additional action against
McCaleb.
      Tucker said that McCaleb never spoke to her or touched her again. There
was one instance where he entered her work area, but Tucker reported him,
UPS addressed it, and it never happened again. Nevertheless, Tucker notified
her supervisors that she felt unsafe at work because McCaleb was in the
facility, she would see him outside of her work area, and he would stare at her

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in a way that felt intimidating. However, Tucker testified that she was still
able to perform her duties while at work, even though she “didn’t feel like [she]
could really perform” because she was “constantly looking over [her] shoulder”
and felt “completely out of [her] element” and embarrassed. In an effort to help
her feel safe, UPS provided someone to walk Tucker to her car and offered her
opportunities to transfer to another facility ten minutes away, or to change her
shift by taking a new position, but she declined. According to Tucker, when
she asked whether McCaleb could be transferred to another shift or location,
UPS told her the union would not allow it. 2
       On October 30, 2014, Tucker sent an email about McCaleb to the Area
Human Resources Manager, Wilfred Edwards, following up on a conversation
from a week earlier. She explained that McCaleb continued to stare at her and
position himself near the building’s exit so that she would have to walk past
him, and, on one occasion, he walked directly behind her as she exited the
building. However, Tucker testified that McCaleb “never approached [her] in
the parking lot as [she was] walking in or out.” In this email she requested
that McCaleb be removed from the facility immediately.
       Tucker took the next day off, and then over the weekend decided not to
return the following Monday because she “couldn’t take it anymore.” Tucker
took medical leave, and then tendered her resignation through her attorney
after she found another job. In her resignation letter, dated February 20, 2015,
Tucker’s attorney said she resigned because “UPS failed to move her harasser
from her place of employment.” Tucker never received a response regarding


       2 Evidence shows that the collective bargaining agreement allowed shift changes for
union employees only when there was a job opening, and when there was an opening it
required UPS to (1) advertise the position, (2) allow union employees to bid on the available
position, and (3) offer the position to the bidder with the most seniority. McCaleb testified
that he was not interested in changing his shift. The labor group informed human resources
that the only options were discipline or termination. UPS concluded that the information
gathered from its investigation did not support termination.
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the October 30 email to Edwards because she could not get emails outside of
work.
        After filing her EEOC charge on January 29, 2015, and receiving a right-
to-sue letter, Tucker filed this lawsuit against UPS, alleging a hostile work
environment based on sexual harassment, constructive discharge, and
retaliation claims under federal and state law. The district court granted
summary judgment to UPS on all claims. Tucker now appeals the summary
judgment as to her hostile work environment and constructive discharge
claims.
                               II. Standard of Review
        We review a grant of summary judgment de novo, applying the same
standard as the district court. Feist v. La., Dep’t of Justice, Office of the Att’y
Gen., 730 F.3d 450, 452 (5th Cir. 2013) (quoting Fabela v. Socorro Indep. Sch.
Dist., 329 F.3d 409, 414 (5th Cir. 2003)). “Summary judgment is appropriate
if the moving party can show that ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’”
United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting
FED. R. CIV. P. 56(a)).     After considering the evidence in the light most
favorable to the non-movant, “[i]f the record, taken as a whole, could not lead
a rational trier of fact to find for the non-moving party, then there is no genuine
issue for trial.” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 433 (5th
Cir. 2005) (quoting Steadman v. Tex. Rangers, 179 F.3d 360, 366 (5th Cir.
1999)).
                                III. Discussion
   A. Hostile Work Environment Claim
        Tucker alleged that McCaleb harassed her over the course of nearly two
years, beginning in August 2012 and ending in July 2014. In addition to the
July 24 incident, the alleged harassment consisted of sexually suggestive

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comments, seductive staring, laughing at her rebukes, and scaring her. No one
disputes that Tucker can only recover for acts occurring within the 300 days
preceding the date she filed her EEOC charge, unless the continuing violation
doctrine applies. Under the continuing violation doctrine,
            (1) the plaintiff must demonstrate that the separate
            acts are related; (2) the violation must be continuing;
            intervening action by the employer, among other
            things, will sever the acts that preceded it from those
            subsequent to it; and (3) the doctrine may be tempered
            by the court’s equitable powers, which must be
            exercised to “honor Title VII’s remedial purpose
            without negating the particular purpose of the filing
            requirement.”

Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731,
738 (5th Cir. 2017) (quoting Stewart v. Miss. Transp. Comm’n, 586 F.3d 321,
328 (5th Cir. 2009)).
      The district court first determined that the incidents prior to November
2012 did not constitute continuing violations because “intervening action by
UPS sever[ed] the acts that preceded it from those subsequent to it.” It next
concluded that it would be inequitable for Tucker to hold UPS liable under the
continuing violation doctrine for the incidents from November 2012 through
2013 because “Tucker admitted that she had the ability to discipline
[McCaleb], and yet, she failed to do so in connection with any of the alleged
acts of sexual harassment in 2012 and 2013.” Tucker does not challenge the
first determination, and thus waives any argument that incidents prior to
November 2012 constitute continuing violations. See Douglas W. ex rel. Jason
D. W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir. 1998). As to
the incidents from November 2012 through 2013, Tucker merely asserts in a
conclusory fashion that no equitable consideration should prevent the court
from considering the full scope of McCaleb’s behavior. However, she fails to


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discuss the district court’s determination that her failure to exercise any
authority to discipline McCaleb bars consideration of those claims. Even if we
were to consider this argument sufficiently briefed, we would affirm the district
court’s determination because we perceive no error in its assessment of the
facts or the exercise of its equitable powers. See Heath, 850 F.3d at 739 (noting
that the continuing violation theory furthers Title VII’s purpose of
“encourag[ing] employees to work with employers and to take advantage of
other mechanisms for obtaining relief from ongoing harassment” prior to filing
an EEOC charge).
      Therefore, only two incidents of alleged harassment remain for our
consideration: (1) the July 24 incident previously discussed and (2) a June 2014
incident where McCaleb “was lurking in the pitch black darkness between two
trailers and responded to Ms. Tucker’s question to another employee.” To
establish her prima facie case of a hostile work environment based on sexual
harassment, Tucker must show that
             (1) she belongs to a protected class; (2) was
             subjected to unwelcome sexual harassment;
             (3) the harassment was based on her sex; (4) the
             harassment affected a term, condition, or
             privilege of her employment; and (5) [UPS] knew
             or should have known of the harassment and
             failed to take remedial action. 3
Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir. 2001). Harassment must be
“severe or pervasive” enough to create an abusive working environment in
order for the plaintiff to recover. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d
473, 479 (5th Cir. 2008).



      3 McCaleb raised both federal and state law claims, but the outcome is not different
here between the two. We rely on Title VII law when interpreting Louisiana’s anti-
discrimination law. Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998); see also
Tanner v. LSU Fireman Training Program, 254 F.3d 1082, 2001 WL 564147, at *2 (5th Cir.
2001) (per curiam) (unpublished).
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       The district court determined that the alleged harassment was not
sufficiently severe or pervasive and that UPS took prompt remedial action. We
pretermit this issue because, even assuming without deciding that the alleged
harassment was sufficiently severe and that UPS should have known that
McCaleb intentionally committed the July 24 offense based on his subsequent
conviction, we hold that UPS took sufficient remedial action to avoid liability
under Title VII.
       “A defendant may avoid Title VII liability when harassment occurred but
the defendant took ‘prompt remedial action’ to protect the claimant.” Williams-
Boldware v. Denton Cty., 741 F.3d 635, 640 (5th Cir. 2014). 4 The remedial
action must be “reasonably calculated” to put an end to the harassment. See
id. It is not necessary for employers to utilize the severest sanction against
the offending employee in order to demonstrate “prompt remedial action.” Id.;
see also Landgraf v. USI Film Prod., 968 F.2d 427, 430 (5th Cir. 1992) (“Title
VII does not require that an employer use the most serious sanction available
to punish an offender . . . .”). Where the incidents of harassment do not involve
“a protracted outpouring of . . . invidious harassment that require[] large-scale
institutional reform,” the employer is only “required to implement prompt
remedial measures to prevent [the harasser], and anyone else, from engaging
in [the complained of] harassing conduct toward [the victim].”                     Williams-
Boldware, 741 F.3d at 641.




       4    Because Tucker was harassed by someone who was not her supervisor, the fifth
prong is part of the equation. See Watts v. Kroger Co., 170 F.3d 505, 509 & n.3 (5th Cir. 1999).
Under these circumstances, the fifth prong is necessary to establish vicarious liability.
See id. at 509. When, on the other hand, the alleged harasser is a supervisor with immediate
or successive authority over the victim, the fifth prong is unnecessary because the employer
is subject to vicarious liability for hostile work environments created by that supervisor. See
id. (citing Burlington Ind. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton,
524 U.S. 775 (1998)).
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      In Skidmore v. Precision Printing & Packaging., Inc., evidence showed
that the harasser subjected the victim to “constant sexual remarks,”
“sometimes came up behind her and licked or kissed her face or neck,” “pull[ed]
her waist to his if she bent over,” and “once put his hands around her neck as
if to choke her when she confronted him about his behavior.” 188 F.3d 606,
611, 613 (5th Cir. 1999).    Co-workers testified that the harassment was
“constant.”   Id. at 615.   When notified of the harassment, the employer
instructed the harasser to leave the victim alone and no longer scheduled the
victim to work the same shift as him. Id. at 611. Thereafter, the harasser
never touched or spoke to the victim again. Id. Nevertheless, the victim
alleged that she continued to feel uncomfortable at work because the harasser
“leered” at her and was present in common work areas, and employees at work
began to ostracize her after learning of her allegations.     Id.   She further
testified to severe mental suffering as a result of the harassment, was
diagnosed with post-traumatic stress disorder, and was recommended at least
a year of psychiatric treatment. Id. at 612. We held that the employer’s
response “constitute[d] ‘prompt remedial action’ as a matter of law” because
the harasser’s “conduct ceased its offensive nature,” despite the fact that no
investigation was made until after the EEOC complaint was filed, the harasser
was never reprimanded, and no follow-up inquiry was made to determine
whether the harassment had ended. Id. at 616.
      Here, we hold that that the undisputed evidence shows as a matter of
law that UPS took prompt remedial action sufficient to avoid Title VII liability
because it immediately took action to protect Tucker while the investigation
was pending, and then following the investigation it moved Tucker to a
separate work area, instructed McCaleb not to enter that work area, counseled
McCaleb on its sexual harassment and professionalism policies, provided an
escort to help Tucker feel safer, and the sexual harassment ceased. See id.;

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Boldware, 741 F.3d at 642 (holding that the employer took sufficient remedial
action when it “took seriously the [victim’s] complaints and its remedial efforts
effectively halted the racially harassing conduct of which she complained”);
Harvill, 433 F.3d at 437, 439 (holding that the employer took sufficient
remedial action to end sexual harassment of an employee fondling the victim’s
breasts numerous times and pressing his body against the victim from behind,
among other things, because the employer “acted swiftly in taking remedial
measures” by separating the employees “and the harassment ceased”); see also
Caudillo v. Cont’l Bank/Bank of Am. Illinois, 191 F.3d 455, 1999 WL 542899,
at *1, *4 (7th Cir. 1999) (unpublished) (holding that the employer took prompt
remedial action to end sexual harassment of an employee rubbing his penis
against the victim’s backside while she was working, 5 among other things,
because the harasser was instructed to avoid contact with the victim, counseled
on ending the harassment, the victim was reassigned to a cubicle to minimize
contact with the employee, and the harassment ceased despite subsequent
staring from the employee). Therefore, we affirm the district court’s summary
judgment in favor of UPS on the hostile work environment claim.
   B. Constructive Discharge Claim
       Tucker argues that she was constructively discharged because (1) UPS
never punished McCaleb, (2) she was subjected to McCaleb’s presence at work,
(3) UPS took no additional action to stop the harassment after McCaleb’s
conviction, and (4) UPS punished her by providing an escort to her vehicle at
night, offering her an opportunity to switch jobs and facilities as an
accommodation, and reprimanding her for missing work after McCaleb’s trial.




       5 See Caudillo v. Cont’l Bank/Bank of Am. Illinois, No. 97 C 884, 1998 WL 409406, at
*1 (N.D. Ill. July 16, 1998), aff’d, 191 F.3d 455 (7th Cir. 1999).

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      “To survive summary judgment on a constructive discharge claim, the
plaintiff must provide evidence that working conditions were ‘so intolerable
that a reasonable employee in her position would [have felt] compelled to
resign.’” Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 331 (5th Cir.
2004) (quoting Webb v. Cardiothoracic Surgery Assocs. of N. Tex., 139 F.3d 532,
539 (5th Cir. 1998)). This requires “aggravating factors” resulting in “a greater
degree of harassment than is required for a hostile work environment claim.”
Id. at 331–32. The following actions are considered aggravating factors:
            (1) demotion; (2) reduction in salary; (3) reduction in
            job responsibilities; (4) reassignment to menial or
            degrading work; (5) reassignment to work under a
            younger supervisor; (6) badgering, harassment, or
            humiliation by the employer calculated to encourage
            the employee’s resignation; or (7) offers of early
            retirement or continued employment on terms less
            favorable than the employee’s former status.
Id. at 331–32.
      We agree with the district court that Tucker failed to discharge her
burden to raise a fact issue in this regard. UPS’s remedial actions stopped the
sexual harassment, and McCaleb neither spoke to nor touched Tucker again.
Although McCaleb’s presence at work made her feel uncomfortable, Tucker
said she was still able to perform her duties.        The subsequent conduct
complained of by Tucker does not constitute an aggravating factor and did not
result in a greater degree of harassment than a hostile work environment, and
thus cannot form the basis of a constructive discharge claim. See id. at 332
(holding that the plaintiff could not survive summary judgment on her
constructive discharge claim because she merely alleged harassment but no
aggravating factor, and the employer’s remedial measures ended the sexual
harassment); cf. Barnett v. Boeing Co., 306 F. App’x 875, 879 (5th Cir. 2009)
(per curiam) (holding that the plaintiff failed to show a hostile work

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environment where the harasser “leered at [her], touched her in sexually
inappropriate and unwelcome ways, and allegedly actively intimidated her
after she complained of his actions”).
      AFFIRMED.




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