     Case: 17-30616       Document: 00514425423         Page: 1    Date Filed: 04/11/2018




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

                                                                             FILED
                                    No. 17-30616                         April 11, 2018
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
CATHERINE J. VALDRY,

               Plaintiff – Appellant,

v.

MEGAN J. BRENNAN, Postmaster General,

               Defendant – Appellee.




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CV-453


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Catherine J. Valdry appeals the district court’s grant of summary
judgment on her Title VII retaliatory hostile work environment claim, arguing
primarily that the district court erred by applying the incorrect standard to
one of the elements of her prima facie case—an argument Valdry has forfeited.
We AFFIRM.



       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                    No. 17-30616
                                           I.
      Catherine J. Valdry, a letter carrier for the United States Postal Service
at the Istrouma station in Louisiana, alleges that she suffered from a
retaliatory hostile work environment because of the actions of Clifton
Maryland.     Maryland, a clerk supervisor who then became Manager of
Customer Service at the Istrouma station, subjected Valdry to menacing looks
on many occasions over about three years. 1 These menacing looks began after
Valdry declined to go fishing with Maryland in late 2012. While also giving
menacing looks, Maryland sometimes smirked at Valdry, stood with his hands
on his hips, stuck out his chest, or licked his lips. After Valdry complained
about Maryland’s behavior, Maryland told her, “I’m in charge now. I’m gonna
get you because you reported me.” On this same day, Maryland gave Valdry
the most menacing look yet, after which she suffered a panic attack.
      Valdry also alleges that Maryland inappropriately monitored her and
engaged in other demeaning behavior.             Maryland called Valdry about a
customer complaint and allowed the customer to listen to Valdry’s response,
unbeknownst to Valdry. Another time, Maryland stated that he did “not talk
to devils.” Around this same time, Maryland came to within a foot from
Valdry’s face and told her, “Dumb dumb, you gonna miss more overtime.” After
Valdry called the police because a customer had stationed a dog by his mail
box, Maryland gave her an investigative interview.               About a year later,
Maryland remarked to Valdry, “Emh, Emh, you b—h.” Valdry alleges that she
was traumatized and disabled for thirty days because of her prior encounters
with Maryland.




      1  We construe the facts here in the light most favorable to Valdry. See Galindo v.
Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
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                                 No. 17-30616
      The district court granted the summary-judgment motion of Megan J.
Brennan, the Postmaster General of the United States. While noting that the
Fifth Circuit had not yet decided whether a retaliatory hostile work
environment claim is cognizable under Title VII, the district court nevertheless
allowed Valdry to pursue her claim. The district court also assumed, for the
purposes of the summary-judgment motion, that it could consider all events
occurring after Valdry’s internal complaint about Maryland on September 13,
2013. In setting forth the elements for a prima facie case of retaliatory hostile
work environment, the district court stated that the harassment must have
“affected a term, condition, or privilege of her employment (i.e., the harassment
was so pervasive or severe as to alter her conditions of employment and create
an abusive working environment).” While quoting Gibson v. Verizon Services
Organization, Inc., 498 F. App’x 391, 394 (5th Cir. 2012), for the proposition
that a court should not “disaggregate and separately analyze incidents that are
alleged to constitute a hostile work environment,” the district court sought to
evaluate the categories of harassment that Valdry alleged. The district court
analyzed the monitoring and investigating that Valdry alleged and then
analyzed the incidents of staring and offensive language.
      Considering the totality of the circumstances, the district court held that
Valdry “failed to make out a prima facie claim for retaliatory hostile work
environment because, even construing the facts in the light most favorable to
[Valdry], no reasonable juror could find that the harassment was sufficiently
severe or pervasive to alter the conditions of the victim’s employment and
create an objectively hostile work environment.”
                                       II.
      “We review a grant of summary judgment de novo.” N.Y. Life Ins. Co. v.
Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996). Summary judgment is
appropriate when there is “no genuine dispute as to any material fact and the
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                                 No. 17-30616
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]e
may affirm the district court’s decision on any grounds supported by the
record.” U.S. ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 323 (5th Cir.
2017) (quoting Phillips ex rel. Phillips v. Monroe County, 311 F.3d 369, 376
(5th Cir. 2002)). We consider the facts in the light most favorable to the non-
moving party. Galindo, 754 F.2d at 1216. However, an appellant “cannot
attack summary judgment on appeal by raising distinct issues that were not
before the district court.” Colony Creek, Ltd. v. Resolution Tr. Corp., 941 F.2d
1323, 1326 (5th Cir. 1991) (quoting John v. Louisiana, 757 F.2d 698, 710 (5th
Cir. 1985)). “If a party wishes to preserve an argument for appeal, the party
‘must press and not merely intimate the argument during the proceedings
before the district court.’” Keelan v. Majesco Software, Inc., 407 F.3d 332, 340
(5th Cir. 2005) (quoting N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 n.4 (5th
Cir. 1996)). An appellant must raise an argument “to such a degree that the
district court has an opportunity to rule on it.” Id. (quoting Brown, 84 F.3d at
141 n.4).
                                      III.
      On appeal, Valdry raises four issues: (1) whether the district court erred
in applying the “severe or pervasive” standard rather than a “material
adversity” standard from Burlington Northern & Santa Fe Railway Co. v.
White, 548 U.S. 53 (2006); (2) whether the court erred in not considering
plaintiff’s “particular susceptibility”; (3) whether the court erred in not
analyzing alleged harassing behavior from before the date of Valdry’s first
internal complaint; and (4) whether the court erred by disaggregating the
evidence of retaliatory harassment.
      Valdry has forfeited the first two issues.    As to the first issue—the
primary basis for Valdry’s appeal—Valdry failed to argue to the district court
that Burlington’s standard should apply rather than the “severe and
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                                  No. 17-30616
pervasive” standard. Indeed, in opposing the motion for summary judgment,
Valdry specifically argued that the harassment she experienced “was severe
and pervasive.” As to the second issue, Valdry failed to argue before the district
court the theories she now raises regarding fragility or “particular
susceptibility” to emotional distress.
      Valdry fails to create a genuine issue of material fact on the third issue.
Valdry contends that the district court erred when it set the key time frame of
events to analyze as beginning on September 13, 2013—the date of Valdry’s
first internal complaint against Maryland. However, the district court began
its factual recitation by describing the alleged harassing incidents that
occurred between late 2012 and September 13, 2013. Moreover, the district
court determined that Valdry sufficiently established a temporal connection
between protected activity and alleged retaliatory harassment. Valdry cannot
establish that this dispute over when to start the time frame creates a genuine,
material fact dispute as to causation or any other element of her retaliatory
hostile work environment claim.
      Valdry’s final argument also lacks merit. The district court did not
improperly disaggregate incidents of alleged harassment in an attempt to
“divide and conquer.”    Rather, the district court identified the two major
categories into which the various incidents fit and then—considering all
incidents—made its determination.
                                         IV.
      Accordingly, we AFFIRM the judgment of the district court. In addition,
we DENY the motion for summary affirmance—which was carried with the
case—as MOOT.




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