                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                   _______________________________

                              No. 01-60740
                           (Summary Calendar)
                   _______________________________


RHONDA CLARK,

                                                      Plaintiff-Appellant,

                                 versus

BALLY’S TUNICA, INC. a/k/a BALLY’S HOTEL AND CASINO;
and EDRIC BRAXTON,

                                                  Defendants-Appellees.

         _________________________________________________

              Appeal from the United States District Court
                for the Northern District of Mississippi
                              (2:00-CV-112)
         _________________________________________________
                               May 1, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM*:

     Plaintiff-Appellant Rhonda Clark appeals the district court’s

order granting summary judgment to defendants-appellees Bally’s

Tunica, Inc. (Bally’s) and Edric Braxton,1 dismissing her Title VII

claims for     sexual   harassment   and   creation   of   a   hostile   work


     *
       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this opinion should not be published and is not precedent except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.
     1
       Although there is no individual liability under Title VII,
Braxton was named as a defendant because Clark had also asserted
state law tort claims against him.    Clark has not appealed the
dismissal of her state law claims.
environment.   Agreeing with the district court, we affirm.

                                   I.

                       FACTS AND PROCEEDINGS

     Clark’s duties as a cashier at Bally’s included providing

coins to the employees who filled slot machines.         Braxton was a

slot machine supervisor who, during work hours, was frequently

present in the same area as Clark and had routine contact with her.

As he only supervised slot machine attendants, Braxton had no

supervisory control or direct authority over Clark.

     At one point during their employment at Bally’s, Braxton began

making advances to Clark.      Over the course of one or two months,

Braxton caressed Clark’s hands, told her that she had “bedroom

eyes,” expressed his desire to kiss her all over, and told Clark to

inform her mother that he would be her new son-in-law. Although

Clark felt uncomfortable with Braxton’s actions and remarks, she

did not immediately report them to her superiors.

     A few weeks later, as Clark was walking with a male co-worker,

Braxton approached her, grabbed her by the arm, and informed her

that he did not want her seeing other men.       On the next workday,

Clark   reported   Braxton’s    actions   to   another   slot   machine

supervisor, who, in response, advised Clark to report the incident

to her immediate supervisor, Sue Cerbe.          After reporting the

incident to Cerbe, Clark was directed to fill out an incident

report, which Cerbe forwarded to Bally’s Human Resource Department.


                                   2
       The day after receiving the incident report, Neil Davidson, a

Bally’s employment manager, began an investigation.           This included

interviews with Braxton, Clark, and other co-workers.

       After Clark submitted her report and returned to work, there

was one workday during which she was forced to come into contact

with Braxton. According to Clark, Braxton gave her angry looks and

snatched money out of her hands.

       At    the   conclusion   of   Davidson’s   investigation,    Bally’s

suspended Braxton for five days for failure to comply with a

company directive during an investigation and for exercising poor

judgment in his comments to his co-workers.            Braxton was informed

that       his   alleged   conduct   towards   Clark    was   improper   and

unacceptable, and he was warned that retaliation against Clark or

continued instances of improper behavior would result in further

discipline, possibly including termination.

       After Braxton was disciplined, Davidson phoned Clark to tell

her that remedial action had been taken against Braxton.           Davidson

encouraged Clark to return to work, assuring her that her safety

was not at risk and that if any further problems with Braxton

should be reported, they would be dealt with.           Clark nevertheless

refused to return to work.2          By her own admission, she did not

receive harassing comments from Braxton after her complaint was

filed.      Rather, she cited ostracism by her other co-workers as the

       2
        She maintains that she voluntarily quit, whereas Bally’s
maintains that she was fired after failing to return to work.

                                       3
reason for refusing to return to work.3

     Clark then filed an EEOC charge, and subsequently filed this

suit against Bally’s.    The district court granted summary judgment

in favor of Bally’s, holding that Clark could not raise a genuine

dispute of material fact on all necessary elements of her Title VII

claim.   Clark timely filed a notice of appeal.

                                 II.

                               ANALYSIS

     We review the district court’s grant of summary judgment de

novo.4   As Bally’s did not take any adverse employment action

against Clark, her complaint must be treated as a hostile work

environment claim.5     We held in Jones v. Flagship International6

that, to prevail on a hostile work environment claim, a plaintiff

in Clark’s position must prove that (1) she was a member of a

protected class, (2) she was subjected to unwelcome harassment, (3)

the harassment was based on sex, (4) it affected a term, condition,

or privilege of her employment, and (5) her employer knew or should



     3
        The alleged ostracism from her co-workers was apparently
related to the filing of her incident report against Braxton.
     4
        Fed. R. Civ. P. 56(c); Celotex Corp. v.Catrett, 477 U.S.
217 (1986).
     5
         Casiano v. AT&T Corp., 213 F.3d 278 (2000).
     6
         793 F.2d 714 (5th Cir. 1986) (cited in Skidmore v.
Precision Printing and Packaging Inc., 188 F.3d 606 (5th Cir.
1999)).


                                  4
have known of the harassment but failed to take prompt remedial

action.7

      Regarding the fourth factor, Braxton’s harassment must be

sufficiently   pervasive   and   severe   as   to   alter   the   terms   and

conditions of Clark’s employment. Although we are doubtful whether

the   seriousness and duration of Braxton’s actions in this case

rise to such an actionable level under Title VII, we assume, for

the sake of argument, that they do.       Even assuming, arguendo, that

Clark could meet the fourth factor, however, we are convinced that

she cannot raise a genuine dispute of fact as to the fifth factor

—— employer scienter and inaction —— and therefore affirm the

judgment of the district court.

      The summary judgment evidence presented demonstrates that, on

receiving Clark’s incident report, Bally’s immediately commenced

and prosecuted an investigation.          Within a week or two after

commencing its investigation, Bally’s concluded it and imposed a

punishment on Braxton that was reasonably calculated to convey to


      7
        Id. We note that after the Supreme Court’s decisions in
Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca
Raton, the Flagship five-factor analysis is only applicable to
cases involving harassment by a co-worker.      This case presents
somewhat of a hybrid: Although Braxton was not Clark’s supervisor
and did not possess direct authority over her, he was employed in
a managerial role, which may have given him some measure of
influence and weight with Clark’s supervisors. Both parties and
the district court, however, have analyzed this case under the
Flagship factors and we follow suit. In any case, even if the
Ellerth/Faragher analysis were to apply, we would reach the same
result.


                                    5
him that his conduct was improper and unacceptable, and that

further conduct of that or a retaliating nature would result in

more severe sanctions.   Although Bally’s did not fire Braxton, its

remedial action was prompt and Clark was not sexually harassed by

him afterwards, even in the one instance in which she worked near

him after the filing of her complaint.    Under these facts, Clark

cannot maintain a hostile work environment claim against Bally’s.

Therefore, the district court’s summary dismissal of her action was

proper.

                                III.

                            CONCLUSION

     For the foregoing reasons, the district court’s grant of

summary judgment in favor of Bally’s is

AFFIRMED.




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