                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                           September 30, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       _____________________                     Clerk

                            No. 05-60232
                          Summary Calendar
                       _____________________

                        JACQUELINE HARPER,

                      Plaintiff - Appellant,

                                v.

    CITY OF JACKSON MUNICIPAL SCHOOL DISTRICT; FRED D CASHER,
  Individually and as Agent of City of Jackson Municipal School
                            District,

                      Defendants - Appellees.

_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
                          No. 02-CV-1649
_________________________________________________________________

Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Jacqueline Harper appeals the district

court’s order granting Defendant-Appellee City of Jackson

Municipal School District’s motion for summary judgment.        For the

following reasons, we AFFIRM the judgment of the district court.




     *
          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that this opinion should not be published and is not precedent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.
                             No. 05-60232
                                  -2-

               I. FACTUAL AND PROCEDURAL BACKGROUND

     During the period of time pertinent to her complaint,

Plaintiff Jacqueline Harper taught at Callaway High School

(“Callaway”) in Jackson, Mississippi.       Defendant Fred Casher was

the principal at Callaway.    Harper alleges that she suffered

ongoing sexual harassment by Casher at Callaway between December

1996, soon after Casher was hired as principal, and February

2001, when she began her lawsuit.    Specifically, Harper contends

that Casher repeatedly propositioned her for sex, uttered racy

statements to her, ran his hand up her thigh towards her private

area, licked his tongue at her suggestively, felt her behind, and

even “snatched [her] breast out of [her] dress and stuck it in

his mouth.”   While Harper related these occurrences to some of

her colleagues, neither she nor they reported them to the school

district administrators until February 2001.

     The City of Jackson Municipal School District (“School

District”) has had a sexual harassment policy since 1986.      In

1992, its provisions regarding procedure were amended to read:

     Step One: Within five (5) days of the time a complaint
     becomes known, the employee will present the complaint
     orally to his immediate supervisor or the district’s title
     IX coordinator and complete the “Report of Violation of
     Title IX” form. It should be noted that the complainant
     does not have to report the incident to the supervisor
     before talking with the Title IX coordinator.

     Step Two: Within 3-5 days the supervisor or complainant is
     to present the completed “Report of Violation of Title IX”
     form to the designated person in the office of personnel
                             No. 05-60232
                                  -3-

     services.

The 2000 amended policy retained alternative avenues for

employees to make complaints.

     On February 9, 2001, Harper reported the alleged sexual

harassment to Dr. Delores Hopkins, Assistant Superintendent for

the School District.    Harper told Hopkins she tolerated Casher’s

behavior over the years rather than reporting his conduct because

she was intimidated by his position of authority and feared

losing her job.    Harper asserted that she could not report the

sexual harassment to her supervisor, Casher, since he was the

perpetrator.     The School District and Harper relate the rest of

the exchange between Hopkins and Harper differently.     According

to the School District, Hopkins told Harper that Harper could

“bypass” the school district’s sexual harassment reporting

procedure, which required submission of forms, by sending Hopkins

a written narrative detailing her complaint.

     According to Harper, Hopkins told her she could “bypass” the

grievance process due to the nature of her complaint.     Hopkins

also told Harper it would be “helpful” to Hopkins’ investigation

to have some written documentation of Harper’s complaint.       Harper

believed that she had complied with the grievance process by

orally complaining to Hopkins.     Harper contends that Hopkins

never instructed her to fill out the “Report of Violation of

Title IX” form, nor to see a Title IX coordinator.     Harper
                           No. 05-60232
                                -4-

believed that Hopkins was acting as the Title IX coordinator and

would file any appropriate forms pursuant to Harper’s oral

complaint.   Hopkins memorialized the telephone conversation in a

memo dated February 21, 2001, writing:

     I explained that you could bypass the grievance process
     given the nature of the complaint by providing me a written
     compilation and/or narrative regarding these instances. To
     date, I have not received this information. It would be
     helpful to have some documentation in pursuing your
     complaints.

Harper believed that the narrative requested by Hopkins was

strictly for Hopkins’ own information.    She did not provide the

narrative to Hopkins.   On February 12, 2001, Harper completed an

intake questionnaire for the Equal Employment Opportunity

Commission office in Jackson.    She filed a charge and affidavit

with the EEOC on March 21, 2001.

     On March 29, 2001, JoAnne Nelson Shepherd, the School

District Counsel, telephoned Callaway and left a message asking

Harper to call her.   Unbeknownst to Harper, Shepherd was the

Title IX coordinator, as well.   Harper believed Shepherd only to

be the School District’s attorney.   She believed there would be a

conflict of interest should Harper confide in Shepherd, and

hence, Harper did not return Shepherd’s call.

     In response to Harper’s allegations against Casher, the

School District transferred Casher to another school and hired a

new principal for the 2001-2002 school year. In October 2002, the

School District transferred Harper from Callaway to Hardy Middle
                            No. 05-60232
                                 -5-

School.    The School District explained to Harper that she was

being transferred to better allocate teaching staff since Harper

had the lowest number of students in her class compared to other

teachers in her field.    When Harper requested to be transferred

back to Callaway when a teacher retired, leaving a position in

Harper’s field open, the School District accommodated her

request.    Harper suffered no reduction of salary or benefits

during her transfer.

     In November 2002, Harper filed a complaint in the United

States District Court for the Southern District of Mississippi

under Title VII of the Civil Rights Act of 1964.    Harper named

two defendants, the School District and Casher, and asserted two

claims: an allegation that Casher sexually harassed her while

they were both employed at Callaway and an allegation that the

School District retaliated against her for filing an EEOC charge

regarding the alleged harassment by transferring her to teach at

a middle school.    She also maintains that she was denied the

opportunity to act temporarily as an administrator while teaching

at Callaway and was denied a promotion to assistant principal.



                    II. SUMMARY JUDGMENT STANDARD

     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.,
                            No. 05-60232
                                 -6-

138 F.3d 204, 205 (5th Cir. 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. FED. R. CIV. P. 56(c);

Price v. Federal Exp. Corp., 283 F.3d 715, 719 (5th Cir. 2002).

Summary judgment is mandated where a party fails to establish the

existence of an element essential to the case and on which the

party has the burden of proof.    Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).



                          III. DISCUSSION

A. Sexual Harassment

     Sexual harassment that is “sufficiently severe or pervasive

‘to alter the conditions of [the victim’s] employment and create

an abusive working environment’” violates Title VII.      Meritor

Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)(quoting Hensen v.

City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)(brackets in

original).    Nevertheless, severe and pervasive sexual harassment,

by itself, is not enough to impose liability on the School

District.    “Title VII does not make employers ‘always

automatically liable for sexual harassment by their

supervisors.’” Faragher v. City of Boca Raton, 524 U.S. 775, 792

(1998)(quoting Meritor, 477 U.S. at 72).
                             No. 05-60232
                                  -7-

     An employer is vicariously liable for a supervisor’s sexual

harassing behavior of where a tangible employment action is taken

against the victim-employee by the harassing supervisor.

Faragher, 524 U.S. at 807 (1998).    Where there is no tangible

employment action, the employer may avoid liability by raising a

two-pronged affirmative defense: “(a) that the employer exercised

reasonable care to prevent and correct promptly any sexually

harassing behavior, and (b) that the plaintiff employee

unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to avoid

harm otherwise.”    Id.

     First, we address the issue of whether or not the alleged

facts, viewed in the light most favorable to Harper, the non-

moving party, constitute severe or pervasive sexual harassment.

Harper argues “that the district court erred in finding as a

matter of law that she was not subjected to an objectively

hostile work environment.”    However, the district court correctly

held that Harper’s allegations that Casher subjected her to

sexual propositions, sexual comments, and offensive physical

contact are sufficient to create a genuine issue of material fact

on whether she faced sufficiently severe or pervasive sexual

harassment.   We agree that Harper’s allegations create an issue

of fact on whether the harassment rose to the “severe or

pervasive” level.
                           No. 05-60232
                                -8-

1. Tangible employment action

     Having established that Harper’s allegations constitute

sexual harassment, we turn to the issue of whether or not Harper

suffered a tangible employment action inflicted upon her by

Casher.   If Harper could show that she suffered a tangible

employment action by Casher, her supervisor, then the School

District would be vicariously liable to Harper.   “A tangible

employment action constitutes a significant change in employment

status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision

causing a significant change in benefits. . . . A tangible

employment action in most cases inflicts direct economic harm.”

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998).

     Harper has not shown that Casher imposed upon her any action

that may be characterized as a tangible employment action.    The

record does not show that Casher inflicted any significant

adverse changes on Harper’s employment.   The School District

transferred Casher to another school more than a year before

Harper’s transfer from Callaway to Hardy Middle School.   When

Harper was transferred, Callaway had a new principal.   Harper has

not offered any evidence linking Casher to the decision to

transfer Harper.   See Casiano v. AT&T Corp., 213 F.3d 278, 284-85

(5th Cir. 2000) (finding no tangible employment action where an

employee was denied access to a training program because another
                             No. 05-60232
                                  -9-

manager, not the harassing supervisor, was responsible for the

decision).    Further, even if Harper’s transfer could be

attributed to Casher, it did not inflict significant adverse

changes on Harper’s employment.     During the short duration of her

transfer, Harper retained her salary and benefits.       At Hardy

Middle School, Harper taught a subject within her teaching

experience.    Harper now remains in the School District’s employ

having returned to Callaway.     She has received over $7,000 in

raises since she filed her EEOC complaint.       Harper’s transfer

cannot be characterized as a significant change in her employment

status; nor did it inflict direct economic harm.

     Harper also alleges that Casher denied her the opportunity

to temporarily “fill in” as an assistant principal, thereby

keeping her from “a chance to get any [administrative]

experience.”    We rejected a similar claim in Zaffuto v. City of

Hammond,308 F.3d 485 (5th Cir. 2002).       There, the plaintiff

police officer asserted that “he was denied the opportunity to be

the acting shift lieutenant while his supervisor was on

vacation.”     Id. at 493 n.8.   We held that such a denial “is far

too minor to constitute an ultimate employment action.”       Id.    The

insufficiency of such a denial is underscored in Harper’s

situation since the record shows that Casher twice recommended

Harper for assistant principal positions with the School

District.    The decision not to hire Harper for assistant
                           No. 05-60232
                               -10-

principal was not Casher’s decision.   The School District did not

follow Casher’s recommendations and denied Harper the promotions

without knowing about the alleged sexual harassment.    See

Casiano, 213 F.3d at 284-85 (finding no tangible employment

action where an employee was denied access to a training program

because another manager, not the harassing supervisor, was

responsible for the decision).

     Viewing the facts in a light most favorable to Harper, we

see nothing in Harper’s evidence nor anything in the record

supporting an inference that Casher took a tangible employment

action against Harper.   We agree with the district court and

conclude the School District is not automatically liable to

Harper and may assert the Faragher/Ellerth affirmative defense.

2. The Faragher/Ellerth affirmative defense

     In the absence of a tangible employment action, summary

judgment is appropriate if the School District establishes the

two-pronged defense outlined above.    Harper fails to address the

rest of the employer liability analysis and does not rebut the

School District’s affirmative defense.

a. Did the School District Take Reasonable Care in Preventing and
Promptly Correcting Sexually Harassing Behavior?

     The School District adopted sexual harassment policies in

1986 and updated them in 1992 and 2000.   The School District

trained Casher on its sexual harassment policy and sent him

updates.   It also investigated a previous, anonymous sexual
                           No. 05-60232
                               -11-

harassment allegation against Casher in a timely manner, but

could not corroborate the allegation.

     Harper’s annual employment contracts explicitly made her

employment subject to the School District’s sexual harassment

policies.   The record shows that the School District informed

Harper that the policies were available in the District

Superintendent’s office.   The policies were also available in the

principal’s office and the library.   The policy provided that an

employee may bypass a harassing supervisor and complain about

sexual harassment to the District’s Title IX coordinator.    Harper

admitted in her deposition that she was aware that the School

District had a sexual harassment policy and conceded that she did

not pay much attention to the policy before January 2001.

     Once Harper informed Hopkins about the alleged sexual

harassment by Casher, Hopkins gave Harper the option to bypass

submitting the forms required by the policy by sending Hopkins a

written narrative of her complaint.   Harper did not send Hopkins

any narrative.   Instead, she filed an EEOC charge.   Despite not

having heard from Harper, Hopkins investigated Harper’s

allegations.   Upon receiving the EEOC charge, School District

Counsel Shepherd attempted to interview Harper, but Harper did

not respond to her telephone messages.    While there is contention

among the parties as to the characterization of Hopkin’s request

for Harper’s narrative, and a question as to whether Shepard was
                           No. 05-60232
                               -12-

properly identified as the Title IX coordinator, the fact remains

that Harper did not comply with their requests.   In addition,

despite not having corroborated Harper’s allegations through its

investigation, the School District reassigned Casher to another

school prior to the start of the new school year and hired a new

principal at Callaway where Harper continued to teach.

     These facts indicate the School District’s sexual harassment

policy and response to Harper’s complaint were “both reasonable

and vigorous.”   Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d

969 (5th Cir. 1999)(holding that school district’s anti-

discrimination policy, swift response to harassment complaints,

and acceptance of harasser’s resignation was sufficient to

establish the first prong of an affirmative defense); see also

Casiano, 213 F.3d at 286-87 (finding that an employee’s admitted

knowledge of employer’s policy prohibition sexual harassment and

complaint procedure and employer’s prompt investigation of

complaint showed that the employer “exercised reasonable care to

prevent, and if not prevented, to correct promptly any sexually

harassing behavior by supervisory personnel”).

b. Did Harper Unreasonably Fail to Take Advantage of the School
District’s Preventive or Corrective Opportunities?

     The second prong of the Faragher/Ellerth defense effectuates

a “policy imported from the general theory of damages that a

victim has a duty ‘to use such means as are reasonable under the

circumstances to avoid or minimize the damages’ that result from
                            No. 05-60232
                                -13-

violations of the statute.”   Faragher, 524 U.S. at 806 (quoting

Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.15 (1982)).    “[W]hile

proof that an employee failed to fulfill the . . .   obligation of

reasonable care to avoid harm is not limited to showing an

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.”   Id. at 807-08.

     In this case, accepting Ms. Harper’s testimony as true for

purposes of summary judgment, the lower court properly held that

her own admitted failure to invoke promptly the School District’s

complaint process allowed Casher to continue the harassment over

the years.   Although Harper knew that Casher’s alleged conduct

violated the School District’s sexual harassment policy and knew

that she could complain to the School District to have his

conduct stopped, she did not do so for over six years.    Once she

did complain, Harper failed to cooperate with the School

District’s investigation.   She did not provide Shepherd with a

narrative, nor did she return the School District Counsel’s phone

call.

     These facts show that Harper unreasonably failed to take

advantage of the preventive and corrective measures made

available by the School District.   Casiano, 213 F.3d at 287

(finding employee “unreasonably failed to take advantage of any
                             No. 05-60232
                                 -14-

preventive or corrective opportunities” because, even though “he

suffered at least fifteen propositions [over a four month period,

he] never reported any of the incidents until months after the

last of them”); Scrivner, 169 F.3d at 971 (finding employee

“failed to reasonably avail herself of [the school district’s]

preventative and corrective sexual harassment policies” because,

“[f]rom the summer of 1995 to March 1996, [she] never complained

about [her principal’s] increasingly offensive behavior”).

     Harper’s explanation that she was too intimidated to report

the sexual harassment is insufficient to show that her failure to

complain and cooperate were reasonable.      In Young v. R.R.

Morrison and Son, Inc., 159 F. Supp. 2d 921 (N.D. Miss. 2000),

the court explained why Harper’s subjective fears of reprisal do

not defeat the School District’s affirmative defense:

     All harassment victims risk retaliation when they complain.
     For Title VII to be properly facilitated, the reasons for
     not complaining about harassment should be substantial and
     based upon objective evidence that some significant
     retaliation will take place. For example, a plaintiff may
     bring forward evidence of prior unresponsive action by the
     company or managment to actual complaints. Here, there was
     no evidence that [the harasser] had ever taken any adverse
     tangible employment action against complaining employees . .
     . .

Id. at 927 (citation and quotation marks omitted).      Harper failed

to substantiate her fears.    Viewing the evidence in the light

most favorable to Harper and drawing all reasonable inferences in

her favor does not save her argument.       The School District twice

investigated allegations of sexual harassment perpetrated by
                              No. 05-60232
                                  -15-

Casher.   Despite not having corroborated Harper’s allegations,

the School District chose to transfer Casher.

     Thus, we agree with the district court determination that

the School District is entitled to the Faragher/Ellerth

affirmative defense.

B. Retaliation

     To establish a prima facie case for retaliation, a plaintiff

must show that (1) she engaged in “protected activity,” (2) she

suffered an adverse employment action as a result of partaking in

the protected activity, and (3) there was a “causal link” between

the protected activity and the adverse employment action.        Ackel

v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003).       Once

the showing is made, the burden shifts to the defendant, who must

produce a nondiscriminatory reason for the adverse employment

action.   Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th

Cir. 1992).   The plaintiff may rebut by showing that the reason

provided by the defendant for taking the adverse employment

action is pretextual.   Id.

     Harper argues that the district court improperly granted

summary judgment in favor of the School District on her

retaliation claim.   According to Harper, she established a prima

facie case for retaliation.     Harper alleges that the School

District retaliated against her for making an EEOC complaint by

transferring her mid-semester to another school.
                           No. 05-60232
                               -16-

     It is undisputed that Harper engaged in protected activity

when she filed a complaint with the EEOC.   At issue are the

second and third prongs of the test.   The district court held

that Harper failed to satisfy the second and third elements of

her prima facie case because she did not suffer an adverse

employment action and there was no causal link between the

challenged employment action and her protected activity.   If

Harper failed to establish either of these elements, summary

judgment is appropriate.

1. Adverse Employment Action

     Harper contends that she suffered an adverse employment

action when the School District transferred her from Callaway to

Hardy Middle School in October 2002.   However, Harper’s

characterization of her mid-semester transfer to another school

as an adverse employment action is misplaced.   It is well settled

that the Fifth Circuit takes a “narrow view of what constitutes

an adverse employment action.”   Breaux v. City of Garland, 205

F.3d 150, 157 (5th Cir. 2000).   That is, adverse employment

actions include only ultimate employment decisions such as

hiring, granting leave, discharging, promoting, or compensating.

Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 643, 657 (5th Cir.

2002).

     Under this framework, Harper did not suffer any adverse

employment action while employed at Callaway.   Harper’s transfer
                           No. 05-60232
                               -17-

does not amount to an ultimate employment decision.    While

transfers might be considered adverse employment actions if they

are punitive, see Pierce v. Texas Dep’t of Criminal Justice,

Inst’al Div., 37 F.3d 1146, 1149 (5th Cir. 1994), or if they

could be considered demotions, see Click v. Copeland, 970 F.2d

106, 110 (5th Cir. 1992), Harper provides no evidence that her

transfer to Hardy Middle School is either punitive or demotive.

To the contrary, Harper’s transfer was pursuant to her contract;

her contract for employment with the School District provides

“[t]hat the employee agrees to reassignment during the school

term to any area for which a valid certificate is held.”    Harper

found her transfer undesirable, but, “[u]ndesirable work

assignments are not adverse employment actions.”     Southard v.

Texas Bd. of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997).

     As of her appeal, Harper still taught at Callaway.     See

Dorsett v. Bd. of Tr. for State Colls. and Univs., 940 F.2d 121,

123 (5th Cir. 1991).   She has been increasingly compensated as a

teacher; in the wake of filing her EEOC claim, and prior to her

transfer, Harper received two raises totaling $3,929.    Since

filing her EEOC claim, she has received over $7,000 in raises.

Harper’s continued employment at Callaway and her receiving

annual raises does not constitute retaliation.     See Grizzle v.

Travelers Health Network, Inc., 14 F.3d 261, 267-68 (5th Cir.

1994).
                           No. 05-60232
                               -18-

     Thus, we agree with the district court that Harper has

failed to establish a prima facie case showing that her transfer

amounted to an adverse employment action.

2. Causal Connection

     Even if Harper’s transfer could be characterized as an

adverse employment action, Harper fails to prove that a causal

link exists between the filing of her EEOC complaint and her

transfer.   She does not raise a factual dispute as to the School

District’s nondiscriminatory explanation for her transfer from

Callaway to Hardy Middle School.    See Swanson v. Gen. Servs.

Admin., 110 F.3d 1180, 1188-89 (5th Cir. 1997).      Harper must

show that but for the protected activity, she would not have been

transferred.

     Harper offers no evidence that suggests that her EEOC charge

and her transfer are causally linked.     We have said, that “the

mere fact that some adverse action is taken after an employee

engages in some protected activity will not always be enough for

a prima facie case.”   Swanson, 110 F.3d at 1188 n.3.    Yet,

Harper’s proof supporting a causal link between her filing her

EEOC complaint and her transfer rests solely on the fact that the

transfer happened.

     Harper’s transfer occurred more than eighteen months after

Harper made her EEOC complaint.    “Although this lapse of time is,

by itself, insufficient to prove there was no retaliation, in the
                            No. 05-60232
                                -19-

context of this case it does not support an inference of

retaliation, and rather, suggests that a retaliatory motive was

highly unlikely.”    Grizzle,   14 F.3d at 268; see also Clark

County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (5th Cir. 2001)

(stating that adverse action taken 20 months after an employee

filed an EEOC charge demonstrated “no causality at all”).     This

unlikelihood is further supported by the fact that the School

District reassigned Casher as a result of Harper’s EEOC

complaint.    During summer 2001, the School District transferred

Casher to another school and assigned a new principal to Callaway

beginning with the 2001-2002 school year.

     Furthermore, the School District showed that rather than

being retaliatory, the decision to transfer Harper stemmed from

an independent, nondiscriminatory reason.     In October 2002, the

School District’s Deputy Superintendent informed the new

principal at Callaway that Harper would be reassigned to Hardy

Middle School because plaintiff had the fewest number of students

in her class compared to the other teachers in her field at

Callaway.    The “administrative reassignment” was unaccompanied by

any change in Harper’s pay, benefits, or other conditions of

employment.   Harper fails to show that the School District’s

reason for her transfer is pretextual.

     In addition, Harper remained at the position to which she

was transferred for only a few months.     In January 2003 Harper
                          No. 05-60232
                              -20-

returned to Callaway when she learned that a teaching position

was available to replace a retiring teacher.   The School District

accommodated her request to fill the vacant position at Callaway.

     For these reasons, we agree with the district court that

Harper has failed to establish a prima facie case on the third

prong of the test for retaliation.



                         IV. CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.
