     Case: 18-60663      Document: 00514960176         Page: 1    Date Filed: 05/16/2019




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


                                    No. 18-60663                              FILED
                                  Summary Calendar                        May 16, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
MELISSA A. IVEY,

              Plaintiff - Appellant

v.

MEGAN J. BRENNAN, Postmaster General; UNITED STATES POSTAL
SERVICE,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:17-CV-129


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant      Melissa     Ivey   (“Ivey”)    filed    an       employment
discrimination lawsuit against her employer, Defendant-Appellants United
States Postal Service and the Postmaster General (“Defendants”). The district
court granted summary judgment to Defendants. Finding no error, we affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 18-60663
                                  I. BACKGROUND 1
       In 2012, Plaintiff-Appellant Melissa Ivey worked as a part-time rural
carrier associate for the United States Postal Service in Moss Point,
Mississippi. A rural carrier associate was essentially a substitute who would
fill in for a full-time carrier as needed and “run their route for them.” At the
time of the alleged incidents, Ivey’s immediate, or “first-line,” supervisor was
Joe Brown. Shane Hodges was Joe Brown’s supervisor and Ivey’s “second-line”
supervisor.
       In March 2012, Hodges began making comments about Brown’s
relationship with Ivey. The comments were as follows: “Joe Brown sure likes
him some Melissa Ivey. Joe Brown sure does want some Melissa Ivey. He wants
you as his lover.” Hodges allegedly made these comments “too many times to
count” over a period of weeks. When asked to clarify at her deposition, Ivey
stated she believed Hodges made the comments more than ten times. Ivey took
these comments as serious statements rather than jokes or teasing. Ivey only
spoke with Brown about the comments on one occasion; she found it too
humiliating to have further conversations with him on the subject. She stated
she thought Brown looked surprised when she told him about Hodges’
comments.
       Two months later, Ivey alleges she was harassed by co-worker Dennis
Hebert after telling him Brown had assigned a co-worker to help her on that
day’s route because she was unfamiliar with it. Hebert allegedly “went crazy,”
saying he was “tired of this shit, and as soon as he got to the desk, he was going
to show all of [the] damn subs [they] were going to do [their] damn job.” He also
called Ivey a “damn whiner,” and asked her, “Who are you fucking, that you


       1 Because this case is before us on an appeal of a grant of summary judgment, in
writing these facts we have resolved all factual issues in favor of the nonmoving party—here,
Ivey. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).
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                                 No. 18-60663
don’t have to do no work around here?” Ivey reported the incident immediately
to Brown and Hodges, still crying from the statements. Hodges reprimanded
Hebert, although he did not reassign him. After the incident, Hebert’s attitude
towards Ivey was negative, but Ivey attested that his comments were no longer
of a sexual nature. She stated that she was eventually “pulled out of work” for
around a year “for stress.”
      Ivey filed the instant lawsuit against Defendants, alleging that the
above-described incidents amounted to sexual harassment under the theories
of hostile work environment and retaliation. After some discovery, Defendants
filed a motion to dismiss, or in the alternative, motion for summary judgment.
The motion to dismiss was filed under Rule 12(b)(1), and Defendants argued
that because Ivey had based jurisdiction on 28 U.S.C. § 1331, 42 U.S.C. § 1983,
and 39 U.S.C. §403(c), the district court lacked jurisdiction over her claims
because the federal government had not waived sovereign immunity under any
of those statutes. Defendants argued in the alternative that, if the district
court were to find that Ivey sufficiently alleged claims under Title VII, they
were entitled to summary judgment on the facts in the record. The district
court denied Defendants’ motion to dismiss but granted their motion for
summary judgment. Ivey timely appealed.
                              II. DISCUSSION
A. Motion to Dismiss
      This court reviews “a district court’s ruling on a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction de novo.” Raj v. Louisiana State
Univ., 714 F.3d 322, 327 (5th Cir. 2013).
      Defendants did not file a cross-appeal, but nevertheless claim in their
response brief that the district court erred in denying their motion to dismiss
based on lack of subject matter jurisdiction. Normally, “an appellee who does
not cross-appeal may not ‘attack the decree with a view either to enlarging his
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                                   No. 18-60663
own rights thereunder or of lessening the rights of his adversary.’” Jennings v.
Stephens, 135 S. Ct. 793, 798 (2015) (quoting United States v. American
Railway Express Co., 265 U.S. 425, 435 (1924)). Given that Defendants seek to
vacate a judgment (albeit a judgment in their favor), it is arguable that
Defendants should have filed a cross-appeal in this instance. Nevertheless,
Defendants bring up an issue of subject matter jurisdiction, and this court has
“an independent obligation to determine whether subject-matter jurisdiction
exists . . . .” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
      Upon reviewing the complaint, we are satisfied that Ivey sufficiently
alleged a Title VII claim despite her reference to other statutes. There is no
dispute that the federal government has waived sovereign immunity under
Title VII, see 42 U.S.C. § 2000e-16(c), and we therefore conclude we have
jurisdiction over this appeal and affirm the district court’s denial of
Defendants’ motion to dismiss.
B. Motion for Summary Judgment
      “When reviewing a grant of summary judgment, [this court] view[s] the
facts and inferences in the light most favorable to the non-moving party; and
[it applies] the same standards as those governing the trial court in its
determination.” St. Paul Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202,
205 (5th Cir. 1996). “Summary judgment is proper if the pleadings and
evidence show there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Hernandez v. Yellow Transp., Inc.,
670 F.3d 644, 650 (5th Cir. 2012) (citing Fed. R. Civ. P. 56(a)). “We review the
record in the light most favorable to the nonmovant and draw all reasonable
inferences in her favor.” Hockman v. Westward Commc’ns, LLC, 407 F.3d 317,
325 (5th Cir. 2004). “We resolve factual controversies in favor of the nonmoving
party . . . .” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).
“If the record, taken as a whole, could not lead a rational trier of fact to find for
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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. Texas Rangers, 179 F.3d 360, 366 (5th Cir. 1999)).
      To establish a hostile work environment claim under Title VII, a plaintiff
must show:
      (1) she belongs to a protected group; (2) she was subjected to
      unwelcome harassment; (3) the harassment complained of was
      based on [her sex]; (4) the harassment complained of affected a
      term, condition, or privilege of employment; (5) the employer knew
      or should have known of the harassment in question and failed to
      take prompt remedial action.

Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). The district court
granted summary judgment on Ivey’s hostile work environment claim, 2 finding
that although “Ivey’s allegations describe inappropriate, offensive, and
unwanted conduct, they do not rise to the level of severity or pervasiveness, as
defined by Fifth Circuit precedent, to demonstrate a hostile work
environment.”
      Ivey first contends that the district court erred because a reasonable jury
could find that the comments at issue here were sufficiently severe or pervasive
to constitute a hostile work environment and therefore a jury should have
decided the issue. However, the cases she cites in support of this proposition
all come from outside this Circuit. Moreover, she does not address Defendants’
Fifth Circuit authority which shows that the alleged conduct of both Hodges
and Hebert, even if taken as true, is not enough to create a hostile work
environment as a matter of law. See e.g., Hockman, 407 F.3d at 328 (finding
summary judgment for defendants appropriate where coworker 1) remarked
to plaintiff about another coworker’s body, 2) slapped plaintiff once on the


      2 The district court also granted summary judgment on Ivey’s retaliation claim. Ivey
does not appeal the district court’s ruling as to that claim.
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                                  No. 18-60663
behind with a newspaper, 3) “grabbed or brushed” plaintiff’s breasts and
behind, 4) held plaintiff’s cheeks and tried to kiss her, 5) asked plaintiff to get
to the office early so they could be alone, and 6) stood in the door of the
bathroom while plaintiff washed her hands); Shepherd v. Comptroller of Public
Accounts, 168 F.3d 871, 872 (5th Cir. 1999) (affirming grant of summary
judgment where 1) coworker made offensive comments about plaintiff’s body,
2) stood over plaintiff’s desk on several occasions and tried to look down her
clothing, 3) several times touched her arm, including rubbing his hand along
her arm, and 4) on two occasions patted his lap and said, “Here’s your seat.”).
      “A recurring point in these opinions is that ‘simple teasing,’ offhand
comments, and isolated incidents (unless extremely serious) will not amount
to discriminatory changes in the ‘terms and conditions of employment.’”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Here, while certainly
inappropriate and offensive, Hodges’ comments do not quite rise to the level of
a hostile work environment. Nor does Hebert’s one comment, although also
offensive, change the result. Ivey admits that Hebert’s comment was isolated
in nature and occurred almost two months after Hodges’ comments had
stopped. Ivey also testified at her deposition that after the incident, Hebert
made no further sexualized comments towards her. Taken together, the
district court did not err in finding that Fifth Circuit precedent precludes Ivey’s
claims as a matter of law.
      Ivey’s second point of error is that the district court based its grant of
summary judgment on incomplete deposition testimony. Ivey cites to Heinsohn
v. Carabin & Shaw, P.C., which held that “[w]hen . . . a motion for summary
judgment is premised almost entirely on the basis of depositions, declarations,
and affidavits, a court must resist the urge to resolve the dispute—especially
when . . . it does not even have the complete depositions.” Heinsohn v. Carabin
& Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016). In Heinsohn, the magistrate
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                                 No. 18-60663
judge and district court impermissibly rejected the plaintiff’s statements as
self-serving and credited the testimony of the employer. Id. Here, however, all
disputes of fact have been resolved in Ivey’s favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986); Harvill, 433 F.3d at 433. She simply has
not shown, as a matter of law, that there is sufficient evidence for a jury to
return a verdict in her favor. The district court did not err in granting summary
judgment to Defendants on Ivey’s hostile work environment claim.
                             III. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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