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

                                                                            FILED
                                                                         January 31, 2008

                                     No. 07-30521                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MICHELE GIBSON

                                                  Plaintiff-Appellant
v.

JOHN E POTTER, Postmaster General

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:05-CV-1942


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Michele Gibson (“Gibson”) appeals the district court’s grant of the
defendant’s motion for summary judgment. We AFFIRM.
                         I. FACTS AND PROCEEDINGS
       In 2004, the United States Postal Service (“USPS”) employed Gibson as a
“casual” Automation Clerk at the Processing and Distribution Center in New
Orleans. Gibson worked the night shift from 11:00 p.m. to 7:00 a.m. The record


       *
        Pursuant to 5TH CIR. R. 47.5, this Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30521

shows that, as a casual employee, Gibson did not have a specific assignment and
was not subject to work under the same supervisor for every shift. Gibson
alleges that on January 14, 2004, Andrew Lea (“Lea”), her supervisor, “grabbed
her on the buttocks and made suggestive comments” while she conversed with
another employee.    Later during that shift, James Nelson (“Nelson”), the
Manager of Distribution Operations, approached Gibson and asked her whether
she had been inappropriately touched. He informed her of the USPS “zero
tolerance” policy toward unwanted touching or sexual harassment. Nelson also
informed her that if she experienced future problems, she could speak with him,
and that she should expect an apology from Lea. Lea apologized to Gibson soon
thereafter.
      Aubrey Watson (“Watson”), another Manager of Distribution Operations,
investigated the January 14, 2004 incident and indicated that Gibson would not
be required to be supervised by Lea again. Watson gave Gibson the option of
working another shift, but she declined, citing her lack of transportation.
Although Lea denied touching or grabbing Gibson’s buttocks, and, instead,
admitted to touching the small of her back, Watson recommended that Lea’s pay
and grade be reduced based upon his improper conduct. Lawrence Darsam, the
Acting Senior Plant Manager, instead suspended Lea for fourteen days.
      On February 4, 2004, Gibson filed an informal complaint with the Equal
Employment Opportunity Commission (“EEOC”), describing the January 14,
2004 incident. After a resolution specialist was unable to resolve the dispute,
Gibson filed a formal complaint with the EEOC on May 4, 2004. After receiving
the complaint from the EEOC, the USPS issued a letter to Gibson on June 10,
2004, identifying sex discrimination as the issue for investigation. On August
7, 2004, Gibson submitted an affidavit to the EEOC investigator alleging
additional misconduct by Lea occurring between October 2003 and January
2004. The EEOC investigator requested details of these allegations, instructing


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Gibson in a September 10, 2004 letter to Gibson’s counsel to submit a
supplementary affidavit by December 1, 2004. A second request for Gibson’s
supplemental affidavit was sent by the EEOC investigator to her counsel on
November 11, 2004, reminding counsel of the December 1, 2004 deadline. The
EEOC received Gibson’s untimely supplemental affidavit on January 3, 2005.
The supplemental affidavit alleged a series of events occurring before the
January 14, 2004 incident, including Lea engaging in “sex talk”, asking for
dates, and offering his telephone number to Gibson.
      On January 3, 2005, the same day that the EEOC received Gibson’s
untimely supplemental affidavit, the USPS and the EEOC investigator notified
Gibson in writing that the investigation had been completed and that her
options included requesting a hearing before an administrative law judge
appointed by the EEOC within thirty days or requesting a final agency decision
by the USPS without a hearing. Gibson requested a final agency decision
without a hearing and the decision was issued on February 22, 2005. The final
decision did not consider the additional allegations of sexual harassment, and
ultimately found that Gibson had not suffered sex discrimination as alleged:
            The records and testimony contained in the investigative
      report only document that a single incident occurred which resulted
      in your alleged claim of sexual harassment. Therefore, because of
      your failure to provide any documented evidence of an ongoing
      incident, our adjudication of your claim will be based on the
      accepted issue. At no time during the investigation of this issue did
      you make Postal management aware of on-going occurrences.
            ....

             After carefully considering the entire record, and applying the
      legal standards outlined in McDonnell Douglas Corp. v. Green, 411
      U.S. 792 (1973); [the EEOC Compliance & Appeals Manager finds]
      that you have failed to prove that you were subjected to
      discrimination as alleged.



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      The final decision also informed Gibson of her right to file a civil action in
federal district court, which she exercised on May 31, 2005, alleging that she was
subjected to sexual harassment which led to the creation of a hostile work
environment. The USPS moved for summary judgment, arguing that Gibson
could not establish the essential elements of her claim. The district court
considered Gibson’s additional claims of sexual harassment allegedly occurring
between October 2003 and January 2004, finding them to fall within the ambit
of a reasonable investigation into the January 14, 2004 incident, and granted
summary judgment in favor of the USPS. Gibson now appeals.
                        II. STANDARD OF REVIEW
      This Court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Strong v. Univ. Healthcare
Sys., L.L.C., 482 F.3d 802, 805 (5th Cir. 2007). “Summary judgment is proper
when there exists no genuine issue of material fact and the movant is entitled
to judgment as matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “The evidence
and inferences from the summary judgment record are viewed in the light most
favorable to the nonmovant.” Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460,
465 (5th Cir. 2005).
      The moving party “bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the
record] . . . which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant meets this burden, the burden shifts to the nonmovant “to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Id.
at 322. To survive a summary judgment motion, the nonmovant “need only
present evidence from which a jury might return a verdict in his favor,”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986), but mere allegations

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or denials will not defeat a well-supported motion for summary judgment. FED.
R. CIV. P. 56(e).
                               III. DISCUSSION
      Hostile work environment claims are serious and serve “to level the
playing field for women who work by preventing others from impairing their
ability to compete on an equal basis with men.” DeAngelis v. El Paso Mun.
Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir. 1995). This type of “claim
embodies a series of criteria that express extremely insensitive conduct against
women, conduct so egregious as to alter the conditions of employment and
destroy their equal opportunity in the workplace.” Id. To establish the elements
of a hostile work environment claim, Gibson must show:
      (1) she belongs to a protected class, (2) she was subjected to
      unwelcome sexual harassment, (3) the harassment was based on
      sex, (4) the harassment affected a term, condition, or privilege of
      employment, and (5) the employer knew or should have known of
      the harassment and failed to take remedial action.
Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 655 (5th Cir. 2002).
This Court has recognized, in light of the Supreme Court’s holdings in
Burlington Indus., Inc.. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of
Boca Raton, 524 U.S. 775 (1998), that in circumstances where the alleged
harasser is a supervisor with authority over the employee, as in this case, only
the first four elements need be satisfied. See Watts v. Kroger Co., 170 F.3d 505,
509 (1999).
      Gibson satisfies the first three elements, but fails to satisfy the fourth. To
decide whether the alleged harassment affected a term, condition, or privilege
of her employment, she must show that the conduct was “severe or pervasive.”
Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005). The
conduct must also qualify as both “subjectively and objectively offensive.” Green,
284 F.3d at 655. “‘Whether an environment is hostile or abusive depends on a


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totality of circumstances, focusing on factors such as the frequency of the
conduct, the severity of the conduct, the degree to which the conduct is
physically threatening or humiliating, and the degree to which the conduct
unreasonably interferes with an employee’s work performance.’” Id. at 655–56
(quoting Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)).
The determination of whether alleged conduct is sufficiently severe or pervasive
is not an exact science, but this Court’s decisions on this issue provide guidance
here. See McKinnis v. Crescent Guardian, Inc., 189 F. App’x 307, 310 (5th Cir.
2006) (unreported) (holding that chronic unwanted touching for a year resulting
in plaintiff’s resignation qualified as severe and pervasive); Harvill, 433 F.3d at
435–36 (holding that unwanted touching of plaintiff’s breasts and buttocks over
a seven-month period, despite her protests on every occasion, qualified the
behavior as sufficiently severe or pervasive); Shepherd v. Comptroller of Pub.
Accounts, 168 F.3d 871, 872–74 (5th Cir. 1999) (holding that “mere utterance[s]
of . . . epithet[s] that engender offensive feelings” spanning over a year did not
qualify as severe or pervasive).
      We agree with the district court’s application of the law to the facts:
      Here, there is only one such instance [of unwanted physical contact],
      and even considering [the] January 14, 2004, incident in light of
      prior conduct, the alleged does not become objectively severe or
      pervasive. Here, [Gibson] never reported any prior incidents to her
      employer. Moreover, the employer initiated the investigation of the
      January 14, 2004, on its own initiative and not as a result of a
      complaint by [Gibson]. Significantly, [Gibson] did not apprise the
      employer of the incidents that occurred prior to January 14, 2004,
      even after the January 14, 2004, incident. Given [Gibson’s]
      comments that she “brushed [Mr. Lea] off” and “laughed at him,”
      coupled with her patent failure to report such incidents to her
      employer, it is apparent that the nature of the prior physical contact
      and comments were not severe or pervasive themselves.
Gibson v. Potter, No. 05-1942, 2007 WL 1428630, at *7 (E.D. La. May 10, 2007).
Unlike the offensive conduct in McKinnis and Harvill, the conduct here

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consisted of one nonconsensual physical touching, which was promptly
investigated, even though Gibson did not report the conduct herself. Gibson’s
other allegations are unsubstantiated and analogous to the “boorish and
offensive” comments in Shephard; they do not rise to the level of severity or
pervasiveness required by the law. “A recurring point in [Supreme Court]
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.’” Shephard, 168 F.3d at 874 (quoting
Faragher, 524 U.S. at 786). Viewing the totality of the circumstances here in the
light most favorable to Gibson, including the January 14, 2004 incident, those
incidents allegedly occurring between October 2003 and January 2004, and the
side effects of the January 2004 incident that Gibson alleges now, we
nevertheless conclude that a reasonable jury would not find that Lea’s conduct
was sufficiently severe or pervasive to alter a term or condition of Gibson’s
employment.1 Therefore, we hold that Gibson has not raised a genuine issue of
fact regarding the elements of her hostile work environment claim.
                                  IV. CONCLUSION
       The judgment of the district court is AFFIRMED.




       1
        Under Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of
Boca Raton, 524 U.S. 775, (1998), an employer is afforded an affirmative defense to avoid
vicarious liability for harassment by a supervisor. “The defense comprises two necessary
elements: (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.” Faragher, 524 U.S. at 807. Because we hold that Gibson’s allegations of
Lea’s behavior were not sufficiently severe or pervasive to alter her condition of employment,
and, therefore, do not establish a hostile work environment claim, we have no need to explore
whether USPS can assert a valid Ellerth/Faragher defense.

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