UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WANDA LEE SHAVER,
Plaintiff-Appellant,

v.
                                                                      No. 97-1954
DIXIE TRUCKING COMPANY,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-96-172-3-P)

Argued: October 30, 1998

Decided: May 21, 1999

Before WILLIAMS and MOTZ, Circuit Judges, and
STAMP, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Louis L. Lesesne, Jr., LESESNE & CONNETTE, Char-
lotte, North Carolina, for Appellant. William Porter Farthing, Jr.,
PARKER, POE, ADAMS & BERNSTEIN, Charlotte, North Caro-
lina, for Appellee. ON BRIEF: Keith M. Weddington, PARKER,
POE, ADAMS & BERNSTEIN, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Wanda Lee Shaver appeals the district court's grant of summary
judgment in favor of Dixie Trucking Company, Incorporated on a
sexual harassment claim brought under Title VII of the Civil Rights
Act of 1964. Finding no error, we affirm.

I.

Dixie Trucking Company, Incorporated ("Dixie") hired Wanda Lee
Shaver ("Shaver") in April 1995 as a rate clerk at its facility in Char-
lotte, North Carolina. Charles Finley ("Finley"), Dixie's Vice-
President of Traffic, served as one of Shaver's supervisors. Shaver's
shift began at 5:00 p.m., which was about an hour or two before Fin-
ley's workday ended. On a typical day, Shaver and Finley would not
work the same hours. Every week or two, however, at the beginning
of Shaver's shift, Finley would call her into his office to discuss busi-
ness.

Several alleged incidents of sexual harassment underlie Shaver's
complaint. The first instance was when Finley placed his hand on
Shaver's knee during her job interview with Dixie. (J.A. at 59). Also,
Finley rubbed Shaver's back and shoulders or put his arm around her
several times during her employment. (J.A. at 81, 86).

In July 1995, on two separate occasions, Finley called Shaver into
his office for a stated business purpose but when Shaver moved to
leave the office Finley grabbed and hugged her. 1 After the first "hug,"
_________________________________________________________________
1 Shaver admits that prior to Finley's "hugs," she had hugged his neck.
(J.A. at 69, 75). She also had hugged at least one other male co-worker's
neck. (J.A. at 69, 76). In fact, Shaver described herself as "a person
[who] hugs people's necks," if she knows them. (J.A. at 75).

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Shaver asked Finley not to do it again. (J.A. at 69). According to
Shaver, Finley had hugged her "too tightly" and it made her feel
uncomfortable. (J.A. at 69-70). After that first incident, Shaver
believed that she would not have any further "problems." (J.A. at 76).
The second "hug" frightened Shaver and was much stronger than she
would hug "just about anybody." (J.A. at 71). In fact, Shaver felt as
though her "breast was going through his backbone." (J.A. at 71). She
had to push Finley away in order to leave his office. (J.A. at 83).

The two hugging incidents were approximately two to three weeks
apart and neither lasted longer than five to ten seconds. (J.A. at 71,
82-83). At neither time, apparently, did Finley make any sexually
suggestive remarks or touch or attempt to touch Shaver in any other
manner. Shaver states that after the second hugging incident, she suf-
fered panic attacks, nightmares, and loss of sleep. She also claims that
the incident triggered a memory of having been kidnapped and raped
twenty-three years earlier.

Shaver did not immediately report her experiences with Finley to
anybody at Dixie, but she mentioned them in August 1995 during an
investigation that Dixie conducted following a complaint filed against
Finley by another female employee. When Dixie initiated the investi-
gation, it placed Finley on a leave of absence from which he never
returned. Shaver resigned from Dixie on October 24, 1995 allegedly
due to stress she suffered as a result of her encounters with Finley.

Shaver then filed this action alleging violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and making
claims under North Carolina law for assault and battery, intentional
infliction of emotional distress, negligent infliction of emotional dis-
tress, and negligent hiring and retention. Shaver also alleged a claim
for a violation of North Carolina General Statute§ 143-422.2 (North
Carolina's Equal Employment Practices Act). The district court
granted summary judgment in favor of Dixie on several grounds,
including that there was no basis for imputing liability to Dixie on the
sexual harassment claim.

II.

The district court's grant of summary judgment is reviewed de
novo. Causey v. Balog, 162 F.3d 795, 800 (4th Cir. 1998). Summary

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judgment is appropriate if the evidence, when viewed in the light
most favorable to the non-movant, indicates that there is no genuine
issue as to any material fact and that the movant is entitled to judg-
ment as a matter of law. See id.

Most of the arguments briefed by the parties on appeal address the
agency principles that would determine Dixie's liability for Finley's
alleged harassing conduct.2 This Court finds that summary judgment
should be granted in favor of Dixie, but it reaches that result without
addressing the issue of vicarious liability.

In Meritor Sav. Bank, FSB v. Vinson, the Supreme Court held that
a plaintiff may establish a violation of Title VII"by proving that dis-
crimination based on sex created a hostile or abusive work
environment."3 477 U.S. 57, 66 (1986). Such actionable sexual
harassment must be so "severe or pervasive" that it "`alter[s] the con-
ditions of [the victim's] employment and creates an abusive working
environment.'" Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897,
904 (11th Cir. 1982)). Further, such an environment must be objec-
tively hostile or abusive, i.e., "an environment that a reasonable per-
son would find hostile or abusive." Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993). This determination may be made by looking at all
the circumstances surrounding the alleged hostile environment,
including the frequency and severity of the harassing conduct,
whether the conduct is physically threatening or humiliating, and
whether it interferes unreasonably with an employee's work perfor-
mance. Id. at 23.
_________________________________________________________________
2 On September 30, 1998, this Court ordered the parties to submit sup-
plemental briefs addressing the significance of the Supreme Court's
recent decisions in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118
S. Ct. 2257 (1998) (holding that an employer is subject to vicarious lia-
bility to a victimized employee for an actionable hostile work environ-
ment created by a supervisor with immediate (or successfully higher)
authority over the employee), and Faragher v. City of Boca Raton, 524
U.S. 775, 118 S. Ct. 2275 (1998) (same).
3 Title VII of the Civil Rights of 1964 provides that it is "an unlawful
employment practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms, conditions, or privi-
leges of employment, because of such individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).

                    4
"Title VII does not provide a remedy for every instance of verbal
or physical harassment in the workplace." Lissau v. Southern Food
Serv., Inc., 159 F.3d 177, 183 (4th Cir. 1998). Coworkers may be "un-
pleasant and sometimes cruel." Hartsell v. Duplex Prods., Inc., 123
F.3d 766, 772 (4th Cir. 1997). Not every such instance renders the
workplace objectively hostile. See Hopkins v. Baltimore Gas & Elec.
Co., 77 F.3d 745, 751 (4th Cir.) ("[I]n prohibiting sex discrimination
solely on the basis of whether the employee is a man or a woman,
Title VII does not reach discrimination based on other reasons, such
as the employee's sexual behavior, prudery, or vulnerability."), cert.
denied, 519 U.S. 818 (1996). There simply is"no guarantee of refine-
ment or sophistication in the workplace." Hartsell, 123 F.3d at 773.
As noted above, for liability to attach, the harassing actions must be
severe enough so that a reasonable person would find the environment
to be hostile or abusive. See Harris, 510 U.S. at 21.

This Court has reviewed the facts in the light most favorable to
Shaver, and finds that they do not support her claim that she was a
victim of sexual harassment. This Court believes that Finley's con-
duct was not so severe or pervasive that it created an abusive working
environment.

The alleged harassment arguably began when Finley placed his
hand on Shaver's knee during her interview at Dixie. The principal
basis for her sexual harassment claim, however, appears to be the two
hugging incidents. These two incidents were obviously unpleasant for
Shaver, but nothing suggests that they had sexual overtones. Impor-
tantly, Finley did not preface, accompany, or follow the hugs with any
words or conduct containing implicit or explicit sexual references.
Although Finley's conduct was inappropriate, and understandably
unappreciated, this Court finds that these acts did not constitute sex-
ual harassment under the law.

Even when viewed in a larger context that includes back rubs initi-
ated by Finley, there is no evidence that any of Finley's comments or
actions involved sexual innuendo or sexual advances. Moreover,
Shaver has not shown that Finley's conduct created an environment
that affected her ability to perform her job or that caused her to feel
uncomfortable in the workplace. In sum, after reviewing all the facts

                    5
presented to this Court, we conclude that Finley's conduct did not
cause a change in the terms or conditions of Shaver's employment.

Thus, summary judgment in Dixie's favor is appropriate. Accord-
ingly, this Court also finds that there is no need to remand this case
for reconsideration of Dixie's vicarious liability in light of Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998), and
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275
(1998). We further find that Shaver's arguments as to her other claims
are without merit.

AFFIRMED

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